Effect of provisional disposition prohibiting the disposal, which has been taken without repaying the secured obligation of the security for transfer.

The provisional disposition that was taken without discharging the secured obligation of security by means of transfer shall not have the effect of preventing the disposal act as an exercise of security by the relevant real estate. Therefore, the existence of such provisional disposition may not be asserted against the lessee who has the opposing power under the Housing Lease Protection Act after being leased from the mortgagee with the entry of the provisional disposition prohibition.

Article 719 of the Civil Procedure Act, Article 3 of the Housing Lease Protection Act

October 31, 1972, 72Da1271, 1272 decided Oct. 31, 1972 (Article 103(39)29 of the Civil Act, 30 Ka10270)

Plaintiff

Defendant 1 and two others

1. On the plaintiff (Counterclaim defendant)

A. Defendant (Counterclaim Plaintiff) 2: (a) among the second floor of the building in the attached Form No. 2, the amount of money calculated by the ratio of KRW 24,601 per month from February 26, 1984 to February 26, 1984, the amount of money is paid in proportion to KRW 24,601 per month from the date of each of the above parts, consisting of 4.7 square meters in the inside of the line (g) connecting each point in sequence 19, 20, 21, 22, and 19 in the attached Form No. 2.

B. Defendant 1 receives gold KRW 1,00,00 from the Plaintiff (Counterclaim Defendant) and, at the same time, connects each point of (B) and (c) of the attached drawings No. 2, 5, 11, 12, 13, 14, 15, 16, 17, 18, and 4 among the first floor of the building listed in the attached sheet among the second floor of the building listed in the attached sheet, Defendant 1 successively connects each point of (c), (d), (e), and (e) the second floor of the building, 29.4 square meters, such as indication 5, 10, 11, 12, 13, 14, and 5 of the attached sheet No. 2;

C. Defendant 3 received gold KRW 3,00,000 from the Plaintiff (Counterclaim Defendant) and, at the same time, issued each order of 16 square meters from the underground room of the building, such as (A) 17 square meters in the part on board, which connects each point of (a) 7, 8, 9, 10, 10, and 7 in sequence among the first floor of the building listed in the attachment;

D. Defendant 4 received gold KRW 3,00,000 from the Plaintiff (Counterclaim Defendant) and, at the same time, connects each point of the attached Form 3,7,8,9, and 3 among the second floor of the building stated in the attached Form No. 2 (A), part (b) of the attached Form No. 2 (A), 20.4 square meters.

2. The plaintiff (Counterclaim defendant) shall pay to the defendant (Counterclaim plaintiff) 2 an amount of 2,450,000 won with 20% interest per annum from March 23, 1984 to the day of full payment.

3. All of the Plaintiff (Counterclaim Defendant)’s claim against the Defendant (Counterclaim Plaintiff) and the remainder of the Defendants and the remainder of the Plaintiff (Counterclaim Defendant)’s claim against the Defendant (Counterclaim Plaintiff) are dismissed.

4. Of the costs of lawsuit, the part incurred by the principal lawsuit shall be three minutes, and the two parts shall be borne by the Defendant (Counterclaim Plaintiff) 2 and the remainder by the Defendants, and the remainder by the Plaintiff (Counterclaim Defendant). The part incurred by the counterclaim shall be two minutes, and the remainder by the Plaintiff (Counterclaim Defendant) and by the Defendant (Counterclaim Plaintiff) 2.

5. The above paragraphs 1 and 2 can be provisionally executed.

The plaintiff (the counter-party defendant; hereinafter the plaintiff hereinafter the plaintiff ") is the principal lawsuit. The defendant 2 ordered the plaintiff to order the part stated in the paragraph (a) of the order of 1 and from January 1, 1984 to the above order of 24,601 won per month; the defendant 1 ordered the plaintiff to order the part stated in the paragraph (b) of the order of 1 to the above order of 1,084,305 won and from January 1, 1984 to the above order of 61,600 won per month; the defendant 3 ordered the plaintiff to order the part stated in the paragraph (c) of the order of 1 to the above order of 2,688,818 and from January 1, 1984 to the above order of 1, 1984 to the above order of 1,61,600 won per month; the amount of 1,6422,522 won to the plaintiff and 1,481,484 won per month from the above order.

Defendant 2 is a counterclaim, and Defendant 2 pays to Defendant 2 5,498,739 won with an annual 25% interest from the day following the delivery of the half-gu amount to the day of full payment.

The judgment that the lawsuit cost shall be borne by the plaintiff and each provisional execution declaration are sought.

1. The plaintiff's main claim is examined.

2. A section demanding the name of the building;

The building in the separate sheet (hereinafter referred to as the building in this case) was originally owned by the plaintiff. The provisional registration for preserving the right to claim ownership transfer on July 14, 1980 for the purpose of securing the obligation, and the provisional registration on September 26, 1981 for the purpose of securing the right to claim ownership transfer on September 26, 1981 for ordering the above provisional registration to complete the principal registration of the right to transfer ownership transfer on September 26, 1981, and the order was issued, but the secured obligation was fully repaid and the ownership was cancelled on October 12, 1983, and there is no dispute between the parties, and according to the result of on-site verification by the party members and the appraisal by the Cho Nam-nam of the appraiser, the fact that the defendants occupy the respective parts in the original sheet of the building in this case, and there is no other counter-proof evidence. Therefore, the defendants are obligated to clarify the part of

Defendant 1, 3, and 4 have moved into a move-in report with the consent of the same non-party when the building in this case is owned by the non-party 1, and completed the move-in report with the same non-party, and the same Defendants have no obligation to order the portion of possession until the lease deposit is returned as the lessee protected by the Housing Lease Protection Act. Thus, the following facts are as follows: (a) No. 3-1, No. 7-1, No. 7-1, and No. 3 (each lease contract) of this case, each of which is acknowledged to be genuine by the testimony of the right prescribed by the witness name and the right prescribed by the above 7-1, and the purport of the above 1-3 (each lease contract) are as follows: (b) since the above building in this case was leased with the same non-party 2, its husband's husband's right to lease in this case, and (c) the Defendants' right to lease the building in this case may not be known to the non-party 1 as the owner's right to lease.

The plaintiff, on November 7, 1981, before the above Defendants were protected under the Housing Lease Protection Act, enforced a provisional disposition that prohibits the above Defendants from selling and selling the building of this case, lease, etc., and therefore, the above Defendants resist that they cannot oppose the rights of lease. Thus, according to the entries in the above evidence No. 1 and the purport of oral argument, the plaintiff applied for provisional disposition with the right to cancel the registration of ownership transfer against the non-party 1 as the right to be preserved and the execution of the provisional disposition was made after the above decision was made, and there is no evidence to prove that the right to be preserved was caused by the time when the provisional disposition was made, and in light of the whole purport of oral argument as stated in each of the above evidence No. 1 and No. 2 (Dismissal) and the whole purport of oral argument, the plaintiff is acknowledged to have received the provisional disposition order without paying the secured debt against the non-party 1 until the above provisional disposition decision was made. Therefore, the plaintiff's right to claim cancellation of ownership transfer registration, which is the right of this case, cannot be viewed as a legitimate disposition of this case.

Thus, Defendant 1, 3, and 4 are obligated to receive each of the deposits from the Plaintiff and to instruct each of the respective possessions to the Plaintiff at the same time.

B. The part concerning the claim for damages of the clinical party

The Plaintiff sought compensation from the Defendants for damages incurred by the Defendants’ possession of the building of this case. Thus, unless there is no evidence to acknowledge that the Defendants’ possession of the building of this case is illegal, the Plaintiff’s claim for damages against Defendant 1, 3, and 4 is without merit, inasmuch as the Defendants, other than Defendant 2, have a legitimate right to refuse to specify the portion of possession until they receive the return of the lease deposit in possession of the remainder of the Defendants by lawful right of lease except Defendant 2, and there is no agreement on rent, as seen earlier.

The defendant 2 asserted that the building of this case was owned by the non-party 1 and possessed by the non-party 1 with his consent. Since the non-party 2 had never known that the registration of ownership transfer was cancelled in the plaintiff's future, it is not responsible for the same defendant. Thus, according to the purport of the above defendant's purchase of the building of this case as alleged by the non-party 1 and the non-party 1's purchase of the building of this case from the non-party 2 to the non-party 3-1, and the non-party 2 to 5's testimony of the witness 2 and the whole purport of oral argument, it can be acknowledged that the non-party 1 occupied the building of this case with his consent and occupied it from the non-party 1 to the non-party 1, and there is no other counter-proof evidence that the non-party 2 had a duty to pay damages from the non-party 2's possession of the building of this case to the non-party 4 to the non-party 2's expiration of the plaintiff 2.

C. Claim for damages due to removal of boiler

The plaintiff asserted that the defendant 2 was unable to remove and use the boiler facilities installed in the building of this case without the plaintiff's consent, and thus, the plaintiff is obligated to compensate for the damage suffered by the plaintiff. Thus, the above defendant's removal of boiler as above is without dispute between the parties, but according to the purport of testimony and pleading of the right to designate a witness, the time when the defendant removed the boiler from the same non-party when it was owned by the non-party 1, can be recognized that it was after the defendant purchased and occupied the building of this case from the same non-party. Thus, the above boiler is also owned by the non-party 1. Thus, it cannot be said that the plaintiff suffered damage due to its removal. Thus, the plaintiff's claim for this part is groundless.

2. A claim filed by Defendant 2 for a counterclaim;

In accordance with the previous purport of evidence Nos. 3-1 to 5, evidence Nos. 4-1, 3 (each receipt), evidence Nos. 4-5, 6-5, and 6 (each lease contract), each statement of evidence Nos. 4-5, 6 (excluding the portion not trusted later), each of the testimony and arguments of the same assistance period, the plaintiff was paid 1,500,000 won from Nonparty 3, 1,000,000 won from Nonparty 4, and 1,00,000,000 won from Nonparty 5, and 1,000,000 won from Nonparty 5, and thereafter leased the building of this case to the same Nonparty. In light of the above purport of the testimony and arguments, the plaintiff cannot be found to have paid 00,000 won to the non-party 1, 3, and 4, and the remaining non-party 1, 3, and 800,000 won were paid to the non-party 1.

According to the above facts, the plaintiff shall be deemed to have obtained profits from the equivalent amount by releasing the obligation to return the deposit due to the withdrawal of the defendant 2 without any legal ground. Thus, the plaintiff shall be deemed to have a duty to pay to the same defendant the amount equivalent to 25 percent per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from March 23, 1984 to the date of full payment, as unjust enrichment.

Defendant 2 also paid KRW 1,00,000 to Nonparty 6 as the deposit for lease on behalf of the Plaintiff. Since the above Nonparty paid KRW 1,898,739 on behalf of the Plaintiff the aggregate of the electricity and water and water that it did not have been used at the time of occupancy, Defendant 2 asserted that the Plaintiff would be paid for each of the above money, Defendant 2 claimed that the Plaintiff would be entitled to the lease deposit, and that the portion of the deposit for lease against Nonparty 6 would be paid by the same Defendant with the return of the lease deposit, there is no evidence to prove that the testimony of the above amount was otherwise recognized without belief in light of Nonparty 6’s witness’s testimony. The portion of the claim for the electricity and water, even if the allegation was alleged by the Defendant, is not a debt of the above Nonparty, which is a ever resident, but a debt of the Plaintiff, and therefore, even if the Defendant paid the above Nonparty on behalf of the said Nonparty, Defendant 2’s claim for the counterclaim is groundless.

3. Conclusion

Ultimately, the plaintiff's principal claim against the defendants and the counterclaim against the plaintiff by the defendant 2 against the plaintiff are justified within the scope of each above recognition, and each remainder is dismissed with no reason. As to the provisional execution declaration by Articles 89, 92, and 93 of the Civil Procedure Act, Article 199 of the same Act and Article 6 of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings are applied to the burden of litigation costs.

Judges Lee Dong-chul (Presiding Judge)