In a case where the transferee’s creditor obtains a seizure and collection order of the claim for the return of the lease deposit after the transfer of the lease deposit, and the contract for the transfer of the lease deposit is null and void as a false indication, whether the creditor constitutes “third party” in the false indication of agreement (affirmative)

If the transfer contract of the lease deposit becomes null and void as a false representation when the transferee's creditor received a seizure and collection order against the claim for the return of the lease deposit after the transfer of the lease deposit, the creditor is a third party who has a substantial new legal interest based on the legal relationship formed externally due to the transfer.

Article 108(2) of the Civil Act

[Judgment of the court below]

Defendant

Incheon District Court Decision 2012Na21461 Decided June 20, 2013

The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.

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

In principle, a declaration of intention in collusion with the other party is null and void and any person may assert the invalidity thereof. However, with respect to a bona fide third party who has de facto legal interest based on the legal relationship formed by a false indication, a bona fide party, other than the party of a false indication and a general successor, who has actually entered into a new legal relationship, cannot oppose the invalidity of such false indication. The purport of not allowing a bona fide third party to oppose the false indication is to protect a person who enters a legal relationship with a legal interest in a separate legal cause based on the separate legal relationship. As such, the scope of a third party is not to grasp only formally based on the legal relationship, but also to grasp whether a new legal interest has been made based on the false indication (see Supreme Court Decision 9Da51258 delivered on July 6, 200). Accordingly, if a contract for the return of a lease deposit was null and void as a contract for the transfer of the lease deposit, the transferee’s creditor should be deemed to have a new legal relationship formed by such false act as a third party.

According to the reasoning of the lower judgment, the lower court determined that the Plaintiff did not constitute a third party under Article 108(2) of the Civil Act, merely because the Plaintiff, as the general creditor of Nonparty 1, the largest transferee of the claim for the return of the lease deposit of this case, acquired the collection right by obtaining a seizure and collection order of the claim for the return of lease deposit of this case from the largest transferee for

However, we cannot accept the judgment of the court below for the following reasons.

According to the reasoning of the lower judgment and the record, the Defendant: (a) on February 4, 2008, leased the instant building to Nonparty 2 as the lease deposit amount of KRW 65 million; (b) Nonparty 2 concluded a contract to transfer the lease deposit of this case to Nonparty 1 formally without the intention to transfer it in fact between Nonparty 1 and Nonparty 1; and (c) notified the Defendant of the transfer on December 10, 2008; and (d) on January 7, 2011, the Plaintiff received a claim attachment and collection order concerning the claim for the refund of the lease deposit of this case, which was transferred by Nonparty 1 based on the authentic copy of the judgment on the delegation fee case against Nonparty 1, and served the Defendant on May 18, 2011.

If facts are the same, in light of the above legal principles, the plaintiff has a substantial new legal interest based on the legal relationship formed in the form of a contract for the transfer of the lease deposit of this case by means of false conspiracy, and shall be deemed as a third party under Article 108(2) of the Civil Act.

Nevertheless, without examining and determining whether the plaintiff's good faith with regard to false conspiracy, the lower court determined that the plaintiff did not constitute a bona fide third party as provided for in Article 108 (2) of the Civil Act for the foregoing reasons. In so doing, the lower court erred by misapprehending the legal doctrine on a third party in the false conspiracy, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating

Justices Yang Chang-soo (Presiding Justice)