[1] The scope of "a bona fide third party" who cannot assert the invalidity of false declaration of a conspiracy in a case where a lease on a deposit basis has been registered in the name of a lessee according to the agreement between a lessee and a lessor for the purpose of securing a claim to refund a deposit for lease without actually concluding a contract to establish a lease on

[2] The case holding that the judgment below which held otherwise erroneous in the misapprehension of legal principles, in a case where Gap had completed the registration of the establishment of chonsegwon to secure Eul's right to lease on a deposit basis with false conspiracy in order to secure Eul's right to lease on a deposit basis, Byung's right to lease on a deposit basis was completed to secure Eul's right to lease on a deposit basis with false conspiracy, and Byung's right to lease on a deposit basis was provisionally attached to Byung's right to lease on a deposit basis to secure Eul's right to lease on a deposit basis, and Eul was ordered to attach Eul's right to lease on a deposit basis,

[1] In fact, where a contract to establish a right to lease on a deposit has not been concluded but a registration of the establishment of a right to lease on a deposit basis has been made in the name of a lessee according to the agreement between a lessee and a lessor for the purpose of securing the claim for the return of a right to lease on a deposit basis or financing funds from a financial institution, even if the contract to lease on a deposit is null and void as it constitutes false representation of agreement, a third party who has a new legal interest based on the legal relationship formed by the contract to lease on a deposit may assert its invalidation only if the third party was aware of such circumstance. In addition, the legal interest that can be protected by a bona fide third party includes a case where a third party has a direct legal interest against the party to the contract to lease on a deposit on a deposit basis, as well as a case where a new legal interest

[2] The case holding that the judgment below erred in the misapprehension of legal principles on the ground that Byung's claim for the right of lease on a deposit basis is a secured claim for the right of lease on a deposit basis which is formed by a false representation, and since Byung has a new legal interest in the right of lease on a deposit basis which is the object of the right of lease on a deposit basis which is the object of the right of lease on a deposit basis which is the right of lease on a deposit basis which is the object of the right of lease on a deposit basis established by a false representation, in case where Byung had completed the registration of the right of lease on a deposit basis to secure Eul's claim for the right of lease on a deposit basis after Eul had been aware of the fact by a false conspiracy in order to secure Eul's claim for the right of lease on a deposit basis in order to secure Eul's claim for the right of lease on a deposit basis, although Byung has acted in bad faith, it cannot be viewed that the person of the right of lease on a deposit basis is against a false one's conspiracy even if

[1] Article 108 (2) of the Civil Act / [2] Article 108 (2) of the Civil Act

[1] Supreme Court Decision 2009Da35743 decided Mar. 25, 2010 (Gong2010Sang, 793)

Plaintiff 1 and two others (Law Firm Han, Attorneys Cho Jong-won et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Korea, Attorneys Kim Jong-chul et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2011Na82096 decided May 11, 2012

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to Non-Party 2's misrepresentation of conspiracy and bad faith

After finding the facts as stated in its holding, the court below determined that, in order to secure Nonparty 4’s claim for the return of the lease deposit, Nonparty 3 created the instant lease on a deposit basis with a false conspiracy to Nonparty 4, thereby making a registration of the establishment of the lease on a deposit basis, which was from August 12, 2004 to August 31, 2008, and Nonparty 2 concluded a contract to establish the right to lease on a deposit basis with the intent to secure his claim with the knowledge of these circumstances, Nonparty 2 concluded a mortgage contract with Nonparty 4 to establish the right to lease on a deposit basis and completed the registration of the establishment of the lease on a deposit basis.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment in violation of logical and empirical rules and the principle of free evaluation of evidence, contrary to what is alleged in the grounds of appeal.

2. As to whether Nonparty 1’s act constitutes a third party under Article 108(2) of the Civil Act

A. In fact, where a contract to establish a right to lease on a deposit has not been concluded but a registration of the establishment of a right to lease on a deposit basis was made in the name of a lessee according to the agreement between a lessee and a lessor for the purpose of securing a claim to return a deposit based on a lease contract or financing funds from a financial institution, even if the contract to lease on a deposit is null and void as it constitutes false agreement, a third party, who newly became legally interested based on the legal relationship formed by the contract to lease on a deposit, may assert the invalidity only if the third party was aware of such circumstance (see, e.g., Supreme Court Decision 2009Da35743, Mar. 25, 2010). In addition, even if a bona fide third party has a direct legal interest against the party to the contract to lease on a deposit on a deposit basis, the legal relationship created by the contract to lease on a deposit on a deposit basis and the case where a new legal interest arises.

B. In order to secure Nonparty 4’s right to lease on a deposit basis, Nonparty 3 created the instant right to lease on a deposit basis with false agreement to Nonparty 4, thereby making a registration of establishment of a right to lease on a deposit basis from August 12, 2004 to August 31, 2008. Nonparty 2, despite being well aware of such circumstance, concluded a contract establishing a right to lease on a deposit basis with Nonparty 4 to secure his claim and completed the registration of establishment of a right to lease on a deposit basis. Furthermore, according to the reasoning of the lower judgment and duly admitted evidence, Nonparty 1, on April 17, 2009, notified Nonparty 2 of the provisional attachment order issued on May 17, 2009 by additional registration of the right to lease on a deposit basis with Nonparty 4’s right to lease on a deposit basis, and Nonparty 1, on August 24, 2009, sent the provisional attachment order issued on the provisional attachment to Nonparty 24, 2009.

In light of the above facts in light of the legal principles as seen earlier, Nonparty 2’s claim on the right to lease on a deposit basis (right to lease on a deposit basis) is the secured claim on the right to lease on a deposit basis (right to lease on a deposit basis), which is the object of the right to lease on a deposit basis (right to lease on a deposit basis), which is the right to lease on a deposit basis) and is the object of the right to lease on a deposit basis (right to lease on a deposit basis), which is the right to lease on a deposit basis), which is the object of the right to lease on a deposit basis (right to lease on a deposit basis), which is the right to lease on a deposit basis) and which is the object of the right to lease on

On the other hand, the court below should have reviewed whether Nonparty 1 was a bona fide third party with respect to the false indication, as alleged by the plaintiffs, even though Nonparty 2 was judged to have been a malicious third party, and judged whether the defendant, who would have succeeded to the status of the false indication, could oppose the plaintiffs who taken over the lawsuit of this case as the heir of Nonparty 1.

Nevertheless, the lower court did not deliberate and decide on whether Nonparty 1 is a bona fide third party with respect to the false indication, and concluded that Nonparty 2 may oppose the Plaintiffs by the above conspiracy solely on the ground that Nonparty 3 was a malicious third party. In so doing, the lower court erred by misapprehending the legal doctrine on the third party with the false conspiracy, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, 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 on the bench.

Justices Shin Young-chul (Presiding Justice)