Whether or not a lessee may claim a right of lease against his heir, or the lessee

Even if the plaintiff et al. did not acquire the building site by inheritance from the deceased's father, but before the death, if the land of this case is leased from the deceased's father as alleged by the defendant, the plaintiff et al. succeeded to the duty of the plaintiff et al. as the lessor of the above land to the defendant due to the death of the plaintiff et al., and therefore the defendant can claim the right of lease of the land of this case against the deceased's deceased father et al.

Article 1005 of the Civil Act

Plaintiff 1 and one other (Attorney Kim Jong-ho, Counsel for the plaintiff-appellant)

Defendant (Attorney Lee In-bok, Counsel for defendant-appellant)

Cheongju District Court Decision 65Na127 delivered on June 1, 1966

Of the original judgment, the part against the Defendant is reversed;

The case shall be remanded to Cheongju District Court Panel Division.

The first ground for appeal by the defendant's agent is examined.

However, according to the records and the original judgment, the fact that the theory building was owned by the defendant and owned by the defendant for that building does not have any dispute between the parties. (In the appellate trial prior to the remanding of the building, the defendant has made a statement that the building was registered as owned by the defendant as of March 17, 1965.)

The fact that the defendant purchased the above building on April 28, 1959, which was the Gu resident law time limit and could not acquire ownership because he did not pass through the registration of ownership transfer within the period stipulated in Article 10 of the Civil Code, is a new fact that the defendant did not assert that there was an error in the original judgment on the ground of this fact, and in a lawsuit claiming the removal of the above building and the order of the site by the ownership of the site, the defendant is not only the owner of the building, but also the plaintiff's claim is not reasonable, and since the plaintiff's lawsuit is not illegal, the defendant's argument that the non-owner of the above building belongs to the matter of qualification of the party, and therefore all the arguments cannot be adopted.

The second ground of appeal is examined.

According to the judgment of the court below, the court below examined the defendant's objection to the lease of the land indicated in the "B" as to the "B" portion, and rejected the defendant's defense on the ground that although the defendant had leased the land indicated in the above "B" portion of the land in this case from the deceased's side, the defendant could not oppose the plaintiff, etc. as the above right of lease, even though he did not have any other reason that could oppose the plaintiff, etc. as such, unless the defendant can oppose the plaintiff, etc. as the right of lease.

However, the plaintiff et al. asserted that the plaintiff et al. died on or around April 1963 and succeeded to the property of the non-party, and according to the family register copy bound in Chapter 61 of the record, it is clear that the plaintiff et al. also belongs to the above non-party's property heir. Thus, even if the plaintiff et al. acquired the ownership by donation before the death, if the plaintiff et al. acquired the ownership by donation, as alleged by the plaintiff et al., the plaintiff et al. succeeded to the duty of the plaintiff et al. as the lessor of the land of this case as the plaintiff et al. as the plaintiff et al. caused the death of the plaintiff et al., and the defendant could claim the right of lease of the land of this case against the deceased's deceased father et al. as the plaintiff et al.'s property heir, it cannot be said that the judgment of the court below is erroneous and there are reasonable grounds for appeal.

Therefore, according to Article 406 (1) of the Civil Procedure Act, it is so decided as per Disposition by the assent of all participating judges.

[Judgment of the Supreme Court (Presiding Judge) Mag-Jak Park Mag-gu