[1] The requirements to set up against the third party who acquired the legal status that is incompatible with the transferee's status in a case where the rights and obligations under the lease contract are comprehensively transferred

[2] In a case where a claim to return a lease deposit is transferred or a claim to return a lease deposit is extinguished before a provisional seizure order, seizure and collection order, etc. is issued, the validity of a provisional seizure order, etc. (negative)

[3] In a case where a lessor entered into a lease agreement with a third party after the existing lease agreement, the method of interpreting and determining the intention of the party regarding the relationship of the existing lease agreement and the claim for the repayment of the lease deposit, whether the claim for the repayment of the lease deposit is completely extinguished, whether the claim for the repayment of the new lease deposit is created, whether the existing lease

[4] Where Party A entered into a lease agreement with Party B to lease an apartment from Party B, and Party B entered into a lease agreement with Party B, which differs from Party B’s wife in terms of the lease agreement, and Party B, upon Party B’s obligor and Party B’s third obligor, received a provisional attachment order on the claim for the repayment of the lease deposit against Party B, the case holding that Party A cannot set up a defense against the transfer of the existing lease deposit with Party B, on the ground that Party A comprehensively transferred the rights and obligations under the existing lease agreement to Party B, on the ground that Party A appears to have comprehensively transferred the rights and obligations under the existing lease agreement, on the ground that the lease agreement was entered into by a fixed date certificate prior to the provisional attachment order on the claim, or that Party was notified

[1] Where a lease deposit is to be returned, unless the obligor notifies the obligor of the transfer with a document with a fixed date or the obligor accepts it with a document with a fixed date, it cannot be set up against any third party other than the obligor (see Article 450 of the Civil Act). This legal principle applies likewise to the assignment of the lease deposit repayment claim, which constitutes the contents of the rights and obligations, in the case of a comprehensive transfer of the rights and obligations under the lease contract, such as transfer of the status under the lease contract. Therefore, in such a case, unless the previous lessee and new lessee and lessor enter into a contract for comprehensive transfer of the rights and obligations such as transfer of the status under the lease contract with the fixed date, or undergo the procedure such as notification and approval by the document with a fixed date, for the transfer of the lease deposit repayment claim under the existing lease contract, the claim for the lease deposit repayment claim, such as the creditor, etc. who received the order of provisional seizure, seizure and collection, etc., which is incompatible with the status of the assignee, cannot be set up

[2] Requisite for setting up against a third party for the transfer of nominative claim under Article 450(2) of the Civil Act is applicable to cases where a third party has acquired the legal status that is incompatible with the status of a transferee with respect to a claim during the existence of the transferred claim. Thus, in cases where a claim for return of a lease deposit is transferred or a claim for return of a lease deposit is already extinguished due to repayment, set-off, settlement agreement, etc. arising from the termination, etc. of the lease contract prior to the provisional seizure order, seizure and collection order, etc. (hereinafter “provisional seizure order, etc.”), if the claim for return of a lease deposit is already transferred or a claim for return of a lease deposit is already extinguished due to the termination, etc.

[3] In a case where a lessor entered into a lease agreement with a third party after the existing lease agreement, there may be cases where a lessee comprehensively transfers the rights and obligations under the existing lease agreement to a third party, such as transfer of the existing lease agreement status to a third party, or solely transfers the existing lease deposit claims to the other party. Here, whether the aforementioned act completely extinguished the existing lease agreement relationship and the claim for the repayment of the deposit, or brings about the claim for the return of the deposit for lease to a third party, or whether the existing lease agreement is comprehensively transferred the rights and obligations under the existing lease agreement or transferred the existing lease deposit claims to a third party or whether the existing lease agreement claims are transferred to a third party constitutes an issue of contract or intent to engage in an act. Therefore, the determination of whether to terminate the existing lease agreement or the existing lease agreement claims to return the deposit should be based on logical and empirical rules by comprehensively taking into account the motive and background of the act, the purpose and genuine intent of the parties to the act, and the transaction practices, and should be based on the following circumstances.

[4] The case holding that in a case where Party A entered into a lease agreement with Party B to lease an apartment from Party B, and Party B entered into a lease agreement different from Party B’s wife for the above apartment, and Party B, upon Party B’s debtor and Party B’s third debtor, the provisional attachment order on the claim for the repayment of the lease deposit against Party B, the case holding that in light of all the circumstances, Party A’s transfer of the existing lease deposit to Party B by comprehensive transfer of the rights and obligations under the existing lease agreement, including transfer of the existing lease deposit to Party B, and the transfer of the existing lease deposit, and Party B entered into a lease agreement with Party B in the name while transferring the existing lease deposit, the claim for the repayment of the existing lease deposit was extinguished within the difference in the provisional attachment order on the claim for the repayment of the existing lease deposit, but the remaining claim for the repayment of the existing lease deposit cannot be asserted with Party B with the fact of transfer of the existing lease deposit, unless there is a circumstance that Party B entered into a fixed date prior to the provisional attachment order on the claim for the repayment of the deposit.

[1] Articles 450 and 618 of the Civil Act; Articles 223, 229, and 276 of the Civil Execution Act / [2] Articles 450 and 618 of the Civil Act; Articles 223, 229, and 276 of the Civil Execution Act / [3] Articles 105, 450, and 618 of the Civil Act / [4] Articles 105, 450, and 618 of the Civil Act; Articles 223, 229, and 276 of the Civil Execution Act

[1] Supreme Court Decision 96Da16612 Decided July 9, 1996 (Gong1996Ha, 2456), Supreme Court Decision 201Da40557 Decided May 29, 201 / [2] Supreme Court Decision 2010Da63690 Decided July 28, 201 / [3] Supreme Court Decision 2000Da27923 Decided October 6, 200 (Gong200Ha, 2284), Supreme Court Decision 201Da53645, 53652 Decided October 27, 201 (Gong201Ha, 201Ha, 2436)

Plaintiff (Law Firm Sil, Attorney Park Si-soo, Counsel for the plaintiff-appellant)

Defendant 1 and two others

Seoul High Court Decision 2014Na1579 decided July 17, 2014

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Where a claim for the return of a lease deposit is transferred, it cannot be asserted against any third party other than the obligor by the transfer without notifying the obligor of the claim with a fixed date or obtaining the obligor’s consent with a document with a fixed date (see Article 450 of the Civil Act). This legal doctrine likewise applies to the transfer of the lease deposit claims which form the contents of the rights and obligations in a comprehensive transfer of the rights and obligations under the lease contract, such as transfer of the status under the lease contract, etc. In such a case, unless the contract for the comprehensive transfer of the rights and obligations, such as transfer of the status under the lease contract, is concluded by a document with a fixed date, or is done by a document with a fixed date with the notification and approval of the transfer of the right and obligations under the existing lease contract, the claim for the return of the lease deposit under the existing lease contract, such as a creditor, etc. who has obtained the status of the transferee and the third party who acquired the status incompatible with the obligation under the lease contract, such as transfer of the status under the lease contract, etc.

Meanwhile, the requirements for setting up against a third party for the assignment of nominative claim under Article 450(2) of the Civil Act are applicable to cases where a third party has acquired the legal status that is incompatible with the status of the assignee with respect to the assigned claim during the existence of the transferred claim. Thus, in cases where a claim for the return of a lease deposit is transferred, or where a claim for the return of a lease deposit is already extinguished due to repayment, set-off, settlement agreement, etc. as a result of the termination of the lease prior to the execution of a provisional seizure order, etc. as to the claim for the return of the lease deposit, the said claim for the transfer of such claim or the provisional seizure order, etc. is invalid as against a non-existent claim, and there is no room for the above requirements for setting up against the obligor (see Supreme Court Decision

However, even if a lessor entered into a lease agreement with a third party after the existing lease agreement, there may be cases where a lessee comprehensively transfers the rights and obligations under the existing lease agreement to a third party, or solely transfers the existing lease deposit to another person. Here, whether the aforementioned act completely terminates the existing lease agreement and the claim for the repayment of the deposit for lease, or whether the existing lease agreement claims are transferred to a third party by comprehensively transferring the rights and obligations under the existing lease agreement or to transfer the existing lease deposit for lease deposit for the purpose of transferring the rights and obligations under the existing lease agreement, constitutes a matter of contract or interpretation that constitutes the above act. Therefore, it should be reasonably determined as to the nature of the legal relationship or the termination of the existing lease claim for the repayment of the deposit for lease deposit by interpreting the intent to achieve the above act in accordance with logical and empirical rules by comprehensively taking into account the motive and background leading up to the above act, the purpose and genuine intent of the parties to the said act, transaction practices, etc., and whether the existing lease agreement was concluded or not, the existing lease agreement relationship between the lessee and the new lessee and the existing lease agreement.

2. Review of the reasoning of the lower judgment and the record, including the duly admitted evidence, reveals the following facts.

A. On January 9, 2010, Defendant 2 entered into a lease agreement with Defendant 1 to lease the instant apartment with the lease deposit of KRW 180 million, monthly rent of KRW 2 million, and from January 29, 2010 to January 28, 2012 (hereinafter “existing lease agreement”, and the said lease deposit was referred to as “existing lease deposit”) and from that time, Defendant 2 resided with Defendant 3, the wife of the instant apartment.

B. On May 20, 201, Defendant 3 prepared a lease agreement with Defendant 1 and the instant apartment with the content of KRW 150 million, monthly rent of KRW 2.2 million, lease term from May 25, 201 to January 28, 2012 (hereinafter “instant lease agreement”), and Defendant 2 continued to reside in the instant apartment even thereafter with Defendant 3.

C. On May 23, 2011, Defendant 1 deposited KRW 30 million in Defendant 3’s account in the difference between the lease deposit and the lease deposit under the instant lease agreement. On the same day, Defendant 1 issued a receipt to the effect that Defendant 3 received KRW 150 million in the instant apartment lease deposit.

D. On the other hand, on July 20, 201, the Plaintiff: (a) on the part of Defendant 2 as the debtor and Defendant 1 as the garnishee; (b) received a decision of provisional seizure of the claim against Defendant 2 on the refund claim of the existing lease deposit against Defendant 1 (hereinafter “decision of provisional seizure of the claim”); and (c) on July 27, 201, the provisional seizure order of the instant claim was served on Defendant 1.

After that, on February 21, 2013, the Plaintiff received a seizure and collection order, stating that Defendant 2 as the debtor and Defendant 1 as the garnishee, transferred the provisional seizure of the instant claim to the principal seizure. The said order was served to Defendant 1 around that time.

3. According to the above facts, Defendant 2 and Defendant 3 continued to reside in the apartment of this case, which is the object of the lease even after the lease contract of this case, and thus, there was no change in the Defendants’ possession and use of the apartment of this case. (2) Since the lease of this case was not only during the term of the lease, but also the expiration date of each term of the lease of this case was the same on January 28, 2012, the lease of this case can be deemed to have been completed within the existing term of the lease, and (3) Defendant 3 and Defendant 1 determined as the lease deposit of this case the amount of KRW 150 million reduced from the amount of the existing lease deposit of this case to KRW 30 million from the amount of the existing lease deposit of this case, and thus, the amount of KRW 2.2 million increased from the monthly rent of the existing lease contract to the amount of KRW 3 million from the existing lease deposit of this case to the amount of KRW 300,000,000 for the existing lease interest of this case.

Examining these circumstances in light of the legal principles as seen earlier, it is reasonable to view that Defendant 2 comprehensively transferred the rights and obligations under the existing lease agreement, such as transferring the status of lessee under the existing lease agreement to Defendant 3, and, at the same time, prepared the instant lease agreement with Defendant 3 in the name of Defendant 3 while transferring the rights and obligations under the existing lease agreement. Unlike this, it cannot be deemed that Defendant 3’s new lease agreement concluded between Defendant 3 and Defendant 1 is completely extinguished due to the conclusion of a new lease agreement between Defendant 3 and Defendant 1, and Defendant 3 paid a new lease deposit to Defendant 1.

(1) If so, within the scope of KRW 30 million, which was returned prior to the provisional seizure order of this case on the claim for the refund of the existing lease deposit, the existing lease deposit claim is extinguished. However, as to the claim for the refund of the existing lease deposit of KRW 150 million remaining, unless there is any circumstance that the lease contract of this case was prepared by a certificate with a fixed date prior to the provisional seizure order of this case, or that there was notification and approval on the transfer of the existing lease deposit, it shall not be deemed that the plaintiff who received the provisional seizure order of this case cannot oppose the transfer of the existing lease deposit claim against the plaintiff.

4. However, while recognizing that Defendant 3 acquired the claim for the return of the existing lease deposit by Defendant 2, the lower court determined that the existing lease deposit claim for the return of the existing lease deposit belongs to Defendant 3, regardless of whether Defendant 3 obtained notification or approval with a fixed date, on the premise that Defendant 3 had the obligation to pay the lease deposit under a new lease deposit separate from the existing lease deposit under the instant lease agreement, the existing lease deposit claim for Defendant 1, who acquired by Defendant 3, was set off and extinguished against Defendant 1’s claim for the lease deposit under the instant lease agreement against Defendant 3, and that Defendant 3 had the claim for the return of the new lease deposit amount of KRW 150 million against Defendant 1,00,000 against Defendant 1.

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the status of a lease agreement, the comprehensive transfer of rights and duties, and the requirements for setting up against a third party in the transfer of lease deposit repayment bond, which affected the conclusion of the judgment by failing to exhaust all necessary deliberations

5. Therefore, without examining the remaining grounds of appeal, we reverse the judgment below, and remand the case to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)