Plaintiff

Distribution-dong Saemaul Bank of Korea

Seoul Special Metropolitan City (Law Firm Sejong, Attorneys Lee Yong-sik, Counsel for defendant-appellant)

May 1, 2007

Seoul Central District Court Decision 2005Ga403247, 2006Gadan68306 decided August 31, 2006 (Intervention)

1. The main part of the judgment in the first instance shall be revoked;

2. The plaintiff's claim is dismissed.

3. The independent party intervenor's appeal is dismissed;

4. Of the total costs of the lawsuit, the part arising from the principal lawsuit shall be borne by the plaintiff, and the part arising from the participation by the independent party intervenor.

1. The plaintiff's purport of claim

Of the dividend table prepared by the above court on December 22, 2005 with respect to the auction of real estate (No. 35701) in Seoul Central District Court 2004tatata, the amount of dividends to the defendant is KRW 69,005,965 and KRW 69,005,965 shall be corrected to distribute to the plaintiff KRW 69,05,965, respectively.

2. Purport and purport of appeal by an independent party intervenor;

A. Claim: On May 18, 2004, it is confirmed that the lease contract for the land and its above ground (hereinafter the real estate of this case) entered into between the Plaintiff and the Nonparty on May 18, 2004 is null and void. On the Defendant, the Seoul Central District Court confirmed that the right to claim payment of KRW 60,408,470 out of the KRW 69,051,338 deposited in the Defendant pursuant to the deposit document No. 110 of the Seoul Central District Court 2006No. 110 is against an independent party intervenor (hereinafter the intervenor).

B. Purport of appeal

The judgment of the first instance shall be revoked. The same judgment as the purport of the claim of the independent party intervenor shall be revoked.

1. Scope of the judgment of this court;

In the first instance court, the Plaintiff sought a judgment identical to the entries in the purport of the claim in the principal lawsuit. The Intervenor asserted that he/she is the holder of the right to receive KRW 60,408,470 out of the dividend amount of this case, and sought confirmation on the invalidity of the lease agreement between the Plaintiff and the Nonparty against the Plaintiff, and the Defendant that the right to claim payment of KRW 60,408,470 out of the deposit money against the Defendant is himself/herself. The first instance court accepted the Plaintiff’s claim and rendered a judgment dismissing the Intervenor’s application for intervention, and only the Intervenor appealed appealed. The independent party intervention lawsuit is a form of litigation which solves the dispute between the Plaintiff, the Defendant, and the Intervenor in the same legal relationship without contradiction, and it is necessary to render a final judgment with the above three parties as the name of the judgment, and even if only the Intervenor appealed appealed, three claims between the Plaintiff, the Defendant, and the Intervenor are all subject to the judgment of the appellate court (see, e.g., Supreme Court Decision 2003Da3969, Mar. 19, 19, etc.).

2. Basic facts

In full view of the evidence No. 1, evidence No. 2-1, evidence No. 2, evidence No. 3, evidence No. 4-1, evidence No. 5, evidence No. 7-1, evidence No. 2, evidence No. 11-1, evidence No. 2-1, and evidence No. 2-2, and the purport of the whole pleadings in the deposit form attached to the fact-finding report to the head of the Seoul Central District Court, the following facts can be acknowledged:

A. On May 18, 2004, the Plaintiff sold the instant real estate to the Nonparty, who was owned by the Plaintiff, and sold the instant real estate to the Nonparty. The Plaintiff leased the instant real estate in KRW 100 million from the Nonparty, and the Plaintiff entered into a sales contract and a lease contract with the Nonparty to make payment to the Plaintiff in lieu of the sales balance to the Plaintiff. On May 19, 2005, the Plaintiff obtained a fixed date of the lease agreement on the instant real estate, and completed the registration of ownership transfer on the instant real estate in the name of the Nonparty on May 20, 2005. The Plaintiff completed the registration of business with the trade name “(trade name omitted)” from the instant real estate on August 11, 2002, and thereafter suspended on September 8, 2005.

B. On May 20, 2004, the Defendant completed the registration of creation of a neighboring mortgage with the maximum debt amount of KRW 520,000,000 regarding the instant real estate.

C. On October 11, 2004, Seoul Central District Court rendered a decision to commence auction as Seoul Central District Court Order No. 35701, Oct. 11, 2004, upon the application of the National Bank Co., Ltd. of the senior mortgagee.

D. In the above auction procedure, the Plaintiff demanded the distribution of KRW 100 million, and the intervenor claimed the delivery of KRW 60,408,470 in total, acquisition tax and additional tax of the Nonparty on May 20, 2004 on the statutory date.

E. In the above auction procedure on December 22, 2005, the Seoul Central District Court distributed the amount of KRW 512,706,744 to the National Bank of Korea Co., Ltd. and the second Gwanak-gu Seoul Special Metropolitan City Office of Seoul Special Metropolitan City Co., Ltd., the amount of KRW 18,806,130, and the remaining amount of KRW 69,005,965 to the defendant.

F. The Plaintiff appeared on the date of distribution, and raised an objection against KRW 30,000 out of the total amount of the distribution of the Defendant and the amount of the distribution of the National Bank of Korea Co., Ltd., and filed a lawsuit of demurrer to the distribution of the instant case. Accordingly, the Seoul Central District Court deposited the total amount of KRW 69,051,338 of the amount of distribution as 110 on January 3, 2006. The intervenor did not appear on the date of distribution.

3. Determination on the main claim

A. The plaintiff's assertion

On May 18, 2004, the Plaintiff: (a) leased the instant real estate from the Nonparty; (b) had previously been registered as a business operator pursuant to the Value-Added Tax Act, etc. on the instant real estate before that date; (c) had acquired the opposing power under Article 3(1) of the Commercial Building Lease Protection Act; and (d) had obtained the fixed date on the lease agreement on May 19, 2004; and (c) had acquired the preferential right to payment under Article 5(2) of the Commercial Building Lease Protection Act as of May 20, 204. Therefore, the Plaintiff has the right to receive dividends prior to the Defendant from the sales price

B. Determination

In cases where a person has completed his/her resident registration in his/her own house and resided after entering into a contract for the sale of the house and the lease of the house from the buyer, a third party is difficult to recognize that he/she is an occupation mediating the right of lease rather than the seller's resident registration before the transfer of ownership is completed in the future, and thus the seller's resident registration is a valid method of public announcement of the lease only after the date when the transfer of ownership is completed in the name of the purchaser. The seller has opposing power under Article 3 (1) of the Housing Lease Protection Act from the date following the completion of the registration of ownership transfer (see Supreme Court Decision 9Da59306, Feb. 11, 200). This legal principle applies likewise to cases where a commercial building lessee occupies the commercial building after completing his/her business registration as stipulated in the Value-Added Tax Act, and sells it to another person and transfers it. Accordingly, the plaintiff completed the registration of ownership transfer in the Non-party's future on May 20, 2004.

4. Whether the application for intervention is lawful;

A. The intervenor's assertion

Although the legal date of the Intervenor’s local tax claim is the same date as the date of the establishment of the Defendant’s right to collateral security, the above court distributed the Intervenor’s local tax claim amount corresponding to the Intervenor’s local tax claim to the Defendant, despite having priority over the Defendant’s claim. Since the Intervenor’s claim amount corresponding to the Intervenor’s claim that was distributed to the Defendant is unjust, the Intervenor seeks confirmation that the Intervenor’s claim for payment of deposit money against the Defendant for seeking the return of the intervenor’s claim. On May 20, 2004, the Plaintiff entered into a lease agreement on the real estate owned by the Nonparty on May 18, 2004

B. Determination

1) An independent party intervention is to claim that the whole or part of the subject matter of a lawsuit is his/her own right, or a third party asserting that the subject matter of a lawsuit is infringed upon by the outcome of a lawsuit as a party to a lawsuit, and then settle in a lump sum without contradiction, without contradiction, the conflicting rights or legal relations between three parties by a single judgment. An intervenor shall make a claim that is incompatible with the plaintiff's claim with both or one of the other party to the lawsuit that he/she first seeks to participate, and the claim shall be able to be constituted by his/her assertion, in addition to the benefit of the lawsuit. For participation in the prevention of corruption, it should be objectively recognized that the plaintiff and the defendant of the principal lawsuit have the intent to harm the third party through the lawsuit in question, and as a result, there is

2) A lawsuit of demurrer against distribution is merely a relative settlement of disputes between the opposing parties, and the judgment becomes effective only against the parties to the lawsuit. The dispute over the amount of distribution between the plaintiff and the defendant is final and conclusive in the lawsuit of demurrer against distribution of this case, and does not affect the rights of the intervenor. In addition, there is no benefit in the lawsuit to seek confirmation of invalidity of the lease agreement concluded between the plaintiff and the non-party between the non-party to the intervenor solely on the ground that the claims of the intervenor priority over the defendant's claims (the result of receiving dividends pursuant to the distribution schedule corrected based on the final and conclusive judgment in favor of the defendant in the lawsuit of demurrer against distribution of this case, if the intervenor receives dividends even until the share of distribution is distributed, the intervenor may file a claim for restitution of unjust enrichment against the plaintiff or the defendant who received dividends in accordance with the final and conclusive judgment in favor of the lawsuit of demurrer against distribution (see Supreme Court Decision 2006Da39546, Feb. 9, 207). Even in cases where an intervenor's application for intervention is deemed to be unlawful.

5. Conclusion

The plaintiff's claim is without merit. The judgment of the court of first instance on the merits is inappropriate based on its conclusion. The judgment of the court of first instance on the merits is revoked and the plaintiff's claim is dismissed [the plaintiff's claim has not been appealed by the defendant (However, the plaintiff's claim has not been asserted in the appellate trial, and the part of the judgment against the defendant may be changed to the defendant's interest because of a request for unity confirmation, and in this case, the principle prohibiting disadvantageous alteration is excluded]. The intervenor's application for intervention must be dismissed in an unlawful manner. The judgment of the court of first instance on the part of the independent party as to the part of the intervention by the intervenor was not made by the intervenor on the date of distribution, and thus the intervenor's application for intervention by the independent party is unlawful. However, it is justifiable in its conclusion that the intervenor did not raise an objection on the date of distribution (

Judges Kim Jong-dae (Presiding Judge)