In case where the buyer's trust arising from the certificate of free lease prepared by the lessee is reflected in the sale procedure, whether it is permissible for the lessee to make a defense of simultaneous performance with the return of the deposit by asserting the lease opposing the buyer's claim for the delivery of the building (negative)

At the time of investigating the value of security for a building offered as security by a mortgagee, a lessee with opposing power has prepared a certificate of free lease with the purport that he/she would deny the lease and not claim a right as a lessee for the building, and subsequent auction procedures commenced thereafter, where there are circumstances to deem that the purchaser’s trust derived from the certificate of free lease prepared by the lessee was reflected in the sale procedures, such as where the purchaser’s trust was determined to file an application for purchase with the reliance on the details of the certificate of free lease, even if the lessee stated in the statement of sale, etc. that there was a lease relation with the building, it cannot be permissible against the principle of good faith to assert a lease opposing power against the purchaser’s request for the delivery of the building.

Article 2 of the Civil Act, Article 3 of the Commercial Building Lease Protection Act

EHH Tech Co., Ltd. and one other (Law Firm extent, Attorneys Lee Han-soo et al., Counsel for the plaintiff-appellant)

Defendant

Suwon District Court Decision 2015Na54463 decided May 20, 2016

The judgment of the court below is reversed, and the case is remanded to the Gu Government District Court.

The grounds of appeal are examined.

1. As to ground of appeal No. 2 by the plaintiffs

A. At the time of investigating the security value of a building offered as a security, a lessee with opposing power has prepared a certificate of free lease with the purport that he/she would deny the fact of the lease and not claim the right as a lessee for the building. In the auction procedure commenced thereafter, where there are circumstances that can be deemed that the purchaser’s trust derived from the certificate of free lease prepared by the lessee was reflected in the sale procedure, such as the case where the purchaser submitted the certificate of free lease with trust in the contents of the certificate of free lease and the purchaser decided an application for purchase with the trust in the contents of the certificate of free lease, even though the lessee has stated in the statement of sale, etc. to the effect that there was a lease relation with the above building, it is not permissible for the lessee to assert the opposing power against the buyer’s request for the delivery of the building, which is contrary to

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) The defendant around September 1, 2006 registered the business of this case as the location of the commercial building, and operated the licensed real estate agent office in this case from around that time.

2) On December 20, 206, the Defendant: (a) leased the instant commercial building from GaBS Co., Ltd., the owner of the instant commercial building (hereinafter “GaBS”); (b) on May 1, 2009, the Defendant concluded a lease agreement again by changing the lease terms from May 1, 2009 to April 30, 201 (hereinafter “instant lease agreement”). On May 1, 2009, the Defendant paid part of the deposit amount in cash and the remainder by offsetting the Defendant’s credit; and (c) obtained the fixed date of the instant lease agreement from the head of Pakistan Tax Office on September 30, 2009.

3) On September 30, 2009, No. S. created a collateral security on the instant commercial building, while obtaining a loan from N.S. Mutual Savings Bank (hereinafter “Personal Savings Bank”).

4) Around that time, the Defendant drafted a document stating that “In the instant shopping district shall be free of charge in accordance with the ABS’s request, and if so, the Defendant shall be entirely responsible for civil and criminal liability for damages arising from the difference between the entries and the actual contents” (hereinafter “free dwelling certificate”).

5) Following the failure to repay the principal and interest of the commercial building of this case, the Personal Savings Bank applied for a voluntary auction on the commercial building of this case, and rendered a voluntary decision to commence the auction on June 13, 2012 at the Jung-gu District Court Goyang-gu 2012 other around 20945.

6) A report on the current status quo prepared by an execution officer and submitted to an auction court in the above voluntary auction procedure is indicated as a registered person on the current status of registered matters, etc. and as a fixed date in the lease contract.

7) On October 31, 2012, the Personnel Savings Bank submitted an application for the exclusion of the Defendant’s right (Lessee) to an auction court, along with a written confirmation of gratuitous residence.

8) In the above auction procedure, Plaintiff Apch Tech Co., Ltd. (hereinafter “Plaintiff”) was the highest bidder and paid the price after receiving a decision of permission for sale. On January 3, 2013, the Plaintiff completed the registration of ownership transfer as to the instant commercial building.

9) Afterwards, the ownership of the instant commercial building was transferred to the KF real estate trust company, and was transferred on April 25, 2013 to the Plaintiffs each 1/2 shares.

C. Examining the above facts in light of the legal principles as seen earlier, although the Defendant was the lessee of the commercial building of this case in a voluntary auction procedure prepared by an execution officer and submitted to an auction court, the fact that the Defendant is the lessee of the commercial building of this case, on the other hand, submitted an application for exclusion of the right (Lessee) with a written confirmation of free residence prepared by the Defendant to the auction court. Thus, if the Plaintiff Company knew of the existence of the above free residence certificate and reliance on its contents and decided on the amount of application for purchase, it should be deemed that the lessee’s assertion of lease opposing the Plaintiff’s request for the transfer of the commercial building of this case from the buyer or buyer, and it is not permissible against the principle of good faith or the principle of trust and good faith.

Nevertheless, without examining these circumstances, the lower court rejected the Plaintiffs’ assertion that the Defendant’s defense of the return of lease deposit and simultaneous performance against the good faith principle against the instant claim for the delivery of commercial buildings by asserting the opposing lease. In so determining, the lower court erred by misapprehending the legal doctrine on the gold speech and the good faith principle, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

2. Therefore, without examining the remaining grounds of appeal by the plaintiffs and the grounds of appeal by the defendant, the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)