2013Na8577 Building Name Map

Lower 00 (69-2)

Gwangju Southern-gu

Law Firm 21st century General Law Office

[Defendant-Appellant]

Name 00 (74-1)

Gwangju Seo-gu

Seo-gu District Court Decision 76,402 (Pyeong-dong)

Korean Joint Judicial Scriveners Office

Attorney Kim Jae-do, Counsel for the defendant-appellant

Gwangju District Court Decision 2013Gadan16584 Decided June 27, 2013

April 11, 2014

April 25, 2014

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall deliver to the plaintiff the real estate listed in the attached Table (Omission) list (hereinafter referred to as "the apartment of this case").

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

A. On August 4, 2004, the Defendant entered into a lease agreement with Park 00, the owner of the instant apartment, with the lease deposit of KRW 100 million, and with the lease term of August 30, 2006. On September 1, 2004, the Defendant filed a move-in report on the instant apartment at the same time as the instant apartment was delivered, and on July 28, 2006, transferred the instant apartment to Hemar, the parent of which was residing.

B. After the expiration of the lease term of the above lease contract, the family, the Defendant’s mother, entered into a lease contract with Park 00 on August 24, 2006 with the lease deposit of KRW 130 million and the lease term of August 30, 2006 with the lease term of KRW 100 million (hereinafter “the lease contract of this case”) until August 30, 2008.

C. As to the apartment of this case, which was owned by 200 on the ground of sale and purchase as of March 9, 2009, the largest 00 ownership was completed by the Gwangju District Court No. 41162, Mar. 9, 2009, as to the apartment of this case.

D. On March 9, 2009, the Korea Credit Guarantee Fund, a creditor of GaO, filed a lawsuit against the largest 00 person by asserting that the sale and purchase was fraudulent act as of March 9, 2009 between Park 00 and the largest 00, and the said court revoked the sale and purchase contract as of March 9, 2009 between Park 00 and the largest 00 on the ground that the fraudulent act was committed on December 14, 2010, and the judgment was finalized on January 8, 2011 (hereinafter “the judgment of this case”). The above judgment became final and conclusive as of January 8, 201.

E. The registration of transfer of ownership in the last 00 apartment in the instant apartment was cancelled on February 10, 201 according to the instant judgment.

F. On March 14, 2011, the Defendant filed a move-in report with the instant apartment.

G. On July 28, 2011, Korea seized the instant apartment, and accordingly, the Plaintiff completed the entire registration of ownership as the receipt No. 44208 of the Gwangju District Court on February 18, 2013 upon winning a bid for the instant apartment on February 18, 2013 in the public sale procedure conducted by the Korea Asset Management Corporation (hereinafter “instant public sale procedure”).

H. The public sale process of this case is publicly announced in the form of lease information by disclosing information about lessee 00 and the transferred household owner Defendant.

I. After receiving the delivery of the apartment of this case on September 1, 2004, the defendant had resided in the apartment of this case with the consent of the old 00, and paid the management expenses.

[Ground of recognition] In the absence of dispute, Gap evidence Nos. 1, 2, 4, Eul evidence Nos. 5, 6, 7, 10, 16 (including virtual numbers), the fact inquiry results on the Bupyeong Dong community service center of this court, and the purport of the whole pleadings;

According to the above facts of recognition, the defendant is obligated to deliver the apartment of this case to the plaintiff who seeks the removal of disturbance as the owner of the apartment of this case, unless there are special circumstances.

3. Judgment on the defendant's assertion

A. The defendant's assertion

The former 00 entered into the instant lease agreement with the former owner of the instant apartment. The Defendant, as an assistant in possession of the former 00, has occupied the instant apartment on March 14, 201, prior to the commencement of the instant public sale procedure. As such, the former 00 acquired opposing power as a lessee, and the Defendant, as an assistant in the performance of 00, has the right to occupy the instant apartment in accordance with the instant lease agreement.

(b) Acquisition of opposing power;

1) The opposing power provided for in Article 3 (1) of the Housing Lease Protection Act may be recognized not only in cases where the lessee has resided in the relevant house and directly occupies it as well as in cases where the lessee has occupied it as an intermediary, but also in such cases where the lessee who is an indirect occupant does not actually reside in the relevant house is not a person who has an address or residence in the relevant house subject to resident registration (Article 6 (1) of the Resident Registration Act), and the resident registration of the tenant cannot be deemed as a legally legal resident under the Resident Registration Act. Therefore, the tenant cannot be deemed as a legally satisfying the opposing power as a register of his/her own resident, etc. who is an indirect occupant, and only if the direct occupant who actually resides in the relevant house completes his/her own resident registration on the basis of the opening of possession with the tenant, the tenant's lease can legally acquire the opposing power against the third party (Supreme Court Decision 200Da5645 Decided January 19, 201).

2) In light of the aforementioned legal principles, the fact that the instant case was moved to the instant apartment on March 14, 201 when the Defendant, a son of the former 00, occupied the instant apartment upon delivery and was moving to the instant apartment on March 14, 201 is as seen earlier.

According to the above facts, it is reasonable to view that the old 00 obtained the opposing power under the Housing Lease Protection Act on March 14, 201 by entering into the instant apartment by mediating the defendant's possession, and that the defendant acquired the opposing power under the Housing Lease Protection Act by entering into the resident registration.

Therefore, since the Gu00 and the defendant have a legitimate right to possess the apartment of this case, the defendant's above defense is reasonable, and the plaintiff's claim is therefore groundless.

C. Judgment on the Plaintiff’s assertion

1) On this issue, the Plaintiff asserted that the ownership of the apartment in this case was transferred to the largestO, and even if the registration of transfer of ownership was cancelled by the judgment in this case, the judgment in this case only takes effect between the obligee and the largestO, and thus, the sale between Park 00 and the least 00 still remains valid. Thus, unless the lease contract was concluded separately from the maximum 00, the moving-in report after the registration of transfer of ownership in the last 00 name cannot be asserted against the Plaintiff as the successful bidder.

2) The above assertion is still premised on the fact that the owner of the instant apartment even though the registration of ownership transfer in the last 00 persons was cancelled in accordance with the instant judgment, and thus, it first examines it.

Article 406 of the Civil Act provides that the revocation of a fraudulent act by exercising the right of revocation and the obligation to reinstate a deviationed property shall take effect only in relation to the creditor, beneficiary, or subsequent purchaser. However, where the registration of transfer of ownership in the name of the beneficiary or subsequent purchaser is cancelled due to the performance of the above duty of restitution, it shall be deemed that the registration of cancellation is indicated by the beneficiary or subsequent purchaser by the judgment of restitution in accordance with the general principle of change in real rights, and that the registration of cancellation takes effect in the form of the registration of cancellation.

Therefore, the ownership of the apartment of this case is naturally returned to GaO because the registration of ownership transfer in the last 00 persons was cancelled according to the judgment of this case.

3) Even if the ownership of the instant apartment is not returned to ParkO and the maximum 00 is still its owner, the transferee of the leased apartment appears to have succeeded to the status of the lessor pursuant to Article 3(4) of the Housing Lease Protection Act. Therefore, the MaximumO succeeded to the status of the lessor, barring any special circumstance.

4) Therefore, regardless of the change in ownership of the apartment of this case, the instant lease agreement continues to exist between the largestO or the Park 00 and the Gu 00, and the old 00, a lessee as a move-in report of the Defendant, a direct occupant, obtained opposing power under the Housing Lease Protection Act. Therefore, the Plaintiff’s above assertion is without merit.

4. Conclusion

Therefore, as long as the tenant who is an indirect occupant has acquired opposing power, the defendant, who is the direct occupant, can oppose the plaintiff as the right of lease under the lease contract of this case. Thus, the plaintiff's claim of this case is dismissed as it is without merit. The judgment of the court of first instance is unfair as the conclusion is different, and the plaintiff's claim is dismissed. It is so decided as per Disposition by the assent of all.

Yellow water (Presiding Judge)

Kim Jong-si

Senior Superintendent General