[1] The validity of the registration of the establishment of chonsegwon made in the name of a third party under an agreement between the lessee and the lessor and the third party for the purpose of securing the right to lease deposit (effective)

[2] In a case where a right to lease on a deposit has been established after a registration of the establishment of a right to lease on a deposit has been made in the name of a third party for the purpose of securing the right to lease on a deposit basis without a contract establishing a right to lease on a deposit basis, whether the lessor may assert that the right to lease on a deposit has been null and void on the ground that the said right constitutes a false declaration of prior agreement by the lessor

[3] Where the registration of creation of chonsegwon due to title trust was not made within the grace period under the Act on the Registration of Real Estate under Actual Titleholder’s Name, the validity of the lease agreement on a deposit basis

[1] Although the right of lease on a deposit basis has the nature of the right of lease as well as the nature of the right of security, it is possible to make the name of the person having chonsegwon and the settlor of chonsegwon and the third party, as in other security rights, if there is an agreement between the person having chonsegwon and the third party, so the registration of establishment of the right of lease on a deposit basis shall be valid for the purpose of securing the right to return the lease deposit based on the lease agreement. Although the contract of lease on a deposit has not been actually concluded between the lessor and the third party, or the right to return the lease deposit, which is the right of lease on the deposit basis of the registration of establishment of the right of lease on a deposit, is not different even if the lessee and the third party did not have any claim directly against the lessor.

[2] In a case where a right to lease on a deposit basis has been registered in the name of a third party in accordance with an agreement between a lessee, a lessor, or a third party for the purpose of securing a right to lease on a deposit basis, and the right to lease on a deposit basis has been established, the right to lease on a deposit basis shall be deemed to be only a contract establishing a right to lease on a deposit basis and thus null and void, even if such agreement is deemed null and void as it constitutes a false agreement, the right to lease on a deposit basis may be asserted as invalid only if the person was aware of the

[3] In a case where the registration of creation of chonsegwon due to title trust is not made within the grace period under the Act on the Registration of Real Estate under Actual Titleholder’s Name, the agreement between the parties to the lease on a deposit basis may not be effective or invalidated against the third party.

[1] Articles 103 [title trust] and 303 of the Civil Act / [2] Articles 103 [title trust], 108 (2), and 303 of the Civil Act / [3] Articles 4, 11, and 12 of the Act on the Registration of Real Estate under Actual Titleholder's Name

[1] Supreme Court Decision 94Da18508 delivered on February 10, 1995 (Gong1995Sang, 1293) / [3] Supreme Court Order 97Ma384 delivered on May 1, 1997 (Gong1997Ha, 1811)

Plaintiff (Attorney Ha Young-young et al., Counsel for plaintiff-appellant)

Superior Lease Co., Ltd. (Attorney Park Jong-chul, Counsel for the defendant-appellant)

Busan High Court Decision 97Na11836 delivered on April 3, 1998

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. According to the reasoning of the lower judgment, the lower court confirmed the following facts.

(1) On October 193, Nonparty 1: (a) employed the co-defendant 2, etc. in the first instance trial as an employee; (b) registered his business with the above Nonparty 2, a new name, a coffee, and a type of business as a tea and tea on November 4 of the same year; and (c) on the 13th of the same month between the Plaintiff and the Plaintiff, the Plaintiff entered into a lease agreement setting the lease deposit for the instant building up to 100,000,000,000,000,000,000,000,000,000, and the lease period for November 30, 1996, and operated the said business after paying the lease deposit to the Plaintiff and receiving the above lease deposit from the Plaintiff. Nonparty 2 was aware of the contents of the said lease agreement, such as the rent, etc.

(2) In order to secure the above right to lease deposit, the above non-party 1 first obtained consent from the above non-party 2 to make the registration of the establishment of a right to lease on a deposit basis for the lease deposit, and then requested the plaintiff to make the registration of the establishment of a right to lease on a deposit basis, and the plaintiff also consented, based on the above lease contract between the above non-party 1 and the above non-party 2 without entering into a separate contract to lease on a deposit basis or not receiving the deposit money with the non-party 1 and the above non-party 2. The above non-party 1 and the above non-party 2 entrusted the registration of the establishment of a right to lease on a deposit basis to the non-party 3 on December 1, 1993 by entrusting the registration of the establishment of a right to lease on a deposit basis to the non-party 1, the plaintiff, the person having chonsegwon, the person having chonsegwon, the person having a right to lease on a deposit basis, the term of lease on a deposit basis until November 30, 1996.

(3) On the other hand, around January 1994, Nonparty 1 loaned KRW 90,900,000 from the defendant under the name of the defendant on the ground of the above non-party 2, and on the 19th day of the same month, the above non-party 1 registered the establishment of the mortgage of this case as the defendant, who was the non-party 2 and the non-party 2 as the defendant on the 19th day of the same month.

(4) However, the above non-party 1 paid 6,00,000 won out of the rent of March 1994 to the Plaintiff, but did not pay all the rent thereafter.

Based on the above facts, the court below held that, even if the above lease contract was concluded between the plaintiff and the non-party 1 for the purpose of securing the above right to lease on a deposit basis with the non-party 2, the above lease contract was invalid because it was not consistent with the substantive legal relations, and thus, the above lease contract was null and void. Thus, as long as the right to lease on a deposit basis has the nature of security, the registration of the right to lease on a deposit basis cannot be viewed as invalid if there was an agreement between the plaintiff and the non-party 2 on the ground that the above lease contract was concluded for the purpose of securing the above right to lease on a deposit with the non-party 1 (see Supreme Court Decision 94Da18508, Feb. 10, 195). Thus, the court below's judgment that the above lease contract was concluded for the purpose of returning the above right to lease on a deposit basis with the non-party 2, who was the non-party 1, as well as the above right to lease on a deposit for lease.

2. In light of the records, the above fact-finding and judgment of the court below are just, and there is no illegality such as misconception of facts and misapprehension of legal principles, and the registration of the establishment of the right to lease on a deposit basis of this case constitutes the registration of the right to lease on a deposit basis. According to Articles 11, 12, and 4 of the Act on the Registration of Real Estate under Actual Titleholder’s Name, which was enforced from July 1, 1995, the title trust agreement of this case was not made until June 30, 1996, and thus the agreement between the plaintiff, the above non-party 1, and the above non-party 2, etc. is null and void, but the invalidation is not set up against the defendant who is a third party under Article 4(3) of the same Act. The arguments

3. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Sung-sung (Presiding Justice)