Korea Stock Savings Bank, Inc.

Defendant (Attorney Lee Young-soo et al., Counsel for the defendant-appellant)

September 12, 2013

Daegu District Court Decision 201Gadan88143 Decided November 30, 2012

1. Of the judgment of the court of first instance, the part against the plaintiff corresponding to the money ordered to pay below shall be revoked.

The defendant shall pay to the plaintiff 69,250,000 won with 5% interest per annum from December 29, 2011 to October 31, 2013, and 20% interest per annum from the following day to the date of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. Ten percent of the total litigation cost shall be borne by the Plaintiff, and ninety percent shall be borne by the Defendant.

4. The part concerning the payment of money under paragraph (1) may be provisionally executed.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 72,980,363 won with 20% interest per annum from the day after the delivery of the complaint to the day of full payment.

1. Facts of recognition;

A. On March 24, 2004, Nonparty 1 (the Nonparty in the judgment of the Supreme Court) leased a building (hereinafter “instant building”) on the ground of the building located in Daegu Northern-gu ( Address omitted) from the Defendant for the lease deposit amounting to KRW 60 million, and the lease period from April 30, 2004 to April 29, 2009, but was changed from July 1, 2009 to KRW 60 million for the lease deposit, KRW 2.5 million for the rent, and the lease period from July 1, 2009 to June 30, 2014 (hereinafter “instant lease contract”).

B. Meanwhile, on May 25, 2005, Nonparty 1 agreed to set up a right to lease on a deposit basis with the Defendant to secure the claim for the return of deposit money, and registered the establishment of a right to lease on a deposit basis with respect to the instant building from April 30, 2004 to April 29, 2009. On September 13, 2010, Nonparty 1 changed the term of the right to lease on a deposit basis (hereinafter “right to lease on a deposit basis”) from May 1, 2009 to April 29, 2014, and thereafter changed the term of the right to lease on a deposit basis (hereinafter “right to lease on a deposit basis”).

C. On September 14, 2010, Nonparty 1 loaned KRW 150 million from the Plaintiff as collateral, Nonparty 1 made a registration of creation of a mortgage on the right to lease on a deposit basis (hereinafter “instant right to lease on a deposit basis”) with the maximum debt amount of KRW 100 million on September 20, 2010.

D. Meanwhile, around April 201, Nonparty 1 discontinued the gas station business and terminated the instant lease agreement with the Defendant on June 15, 201, and then delivered the instant building to the Defendant.

E. However, upon Nonparty 1’s delay in repayment of the loan, the Plaintiff received a claim attachment and collection order (hereinafter “instant collection order”) by subrogation from the Daegu District Court 2012TTTTTT 201,051 out of Nonparty 1’s claim for the return of the deposit money against the Defendant on July 5, 2012 as the mortgagee of the right to lease on a deposit basis. This was served on the Defendant, who is the garnishee, on July 9, 2012.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 7 through 9, 11, 12 (including provisional number), Eul evidence Nos. 1 and 7, the testimony of non-party 2, and the purport of the whole pleadings

2. The assertion and judgment

A. If the duration of chonsegwon expires, the mortgagee against the person having chonsegwon is no longer able to exercise the mortgage against the person having chonsegwon itself, and in such a case, he may exercise his right by means of receiving a collection order or an order in whole with regard to the claim for return of the lease on a deposit basis, which can be deemed to exist in lieu of the lease on a deposit basis which is the object of the mortgage, pursuant to Articles 370 and 342 of the Civil Act and Article 273 of the Civil Execution Act (see Supreme Court Decision 2006Da29372, 29389, Mar. 13, 2008, etc.).

However, the instant right to lease on a deposit basis was established for the purpose of securing the claim for the return of the lease deposit; however, the lease contract between Nonparty 1 and the Defendant disappeareds upon the agreement on June 15, 2011; the Plaintiff was issued a collection order regarding KRW 80,391,051 among the claim for the return of the lease deposit against Nonparty 1’s Defendant as the mortgagee of the right to lease on a deposit basis on July 5, 2012; and the fact that it was served on July 9, 2012 to the Defendant is recognized as above. Therefore, the Defendant is obligated to pay KRW 72,980,363 to the Plaintiff, the collection obligee, except in extenuating circumstances.

B. Judgment on the defendant's assertion

(1) On June 16, 201, the Defendant asserted that, inasmuch as Nonparty 1 received a refund loan of KRW 66 million from the Plaintiff on June 16, 201 and repaid all the loans on September 14, 201, the secured debt of the right to lease on a deposit basis, the instant right to lease on a deposit basis extinguished by the repayment of the secured debt, and that, on June 16, 201, the Plaintiff’s additional loan of KRW 66 million to Nonparty 1 on June 16, 201, it is not allowed for Nonparty 1 to use the instant right to lease on a deposit basis as the security for additional loan without the consent of the Defendant, who is the settlor of chonsegwon.

Realistically, a repayment of the so-called repayment of an existing obligation by providing new loan only formally without receiving funds constitutes a separate loan, except in extenuating circumstances, but is merely an extension of the maturity of the existing obligation. Therefore, the legal nature of the existing obligation shall be deemed a quasi-loan for consumption where the existing obligation still exists while maintaining its identity. In such cases, barring any special circumstance, the obligation to guarantee the existing obligation shall continue to exist (see, e.g., Supreme Court Decision 2011Da76426, Feb. 23, 2012).

However, in full view of the purport of the arguments in evidence Nos. 2 and 10 and Nos. 10, Nonparty 1 may recognize the fact that, on June 16, 2011, he/she paid part of KRW 66,873,113 of the remainder of the loan that remains after being given a loan from the Plaintiff in the form of exchange on September 14, 2010. According to this, Nonparty 1’s repayment within the scope of KRW 66,600,000,000,000, which is the so-called substitution where he/she actually paid an existing loan only within the extent of KRW 666,00,000,000 without actually receiving a loan, it is nothing more than the extension of the payment period of the existing obligation and still continues to continue to exist after maintaining the identity of the existing loan obligations. Accordingly, the loan obligations therefrom are deemed as secured by the mortgage on chonsegwon (see, e.g., Supreme Court Decision 9Da19377, Sept. 39, 199).

D. Next, the Defendant asserts that the instant chonsegwon contract established in order to secure the claim for the return of the deposit was invalid by a false conspiracy, and the Plaintiff was aware of it. Thus, the Defendant, a third party obligor, who is the obligee, may oppose the Plaintiff, who is the obligee, until the collection order is served, until the time when the contract is served with Nonparty 1, the obligee, is delivered. The Defendant asserts that: (i) the overdue rent of KRW 64,625,00 from July 1, 2009 to June 15, 201, which is the delivery date of the instant building, = (2.5 million won a monthly rent + 2.5 million won a surcharge) ¡¿ 2 million won a public charge, such as the electricity charge on the instant building, and the beams and the rent for entering the instant building, KRW 2.5 million a loan to Nonparty 1, 2010 and KRW 2.5 million a million a loan of KRW 2,500,000,0000 won a.

㈎. 이 사건 전세권의 성격

In fact, notwithstanding the absence of a contract to establish a right to lease on a deposit basis, where a contract to establish a right to lease on a deposit basis was separately concluded by agreement between a lessee and a lessor for the purpose of securing a right to lease on a deposit basis and the registration of establishment of a right to lease on a deposit basis was made in the name of a lessee, and where a right to lease on a deposit basis was established, only the said lease is valid, and even if such contract is null and void between a lessor and a lessee, the right to lease on a deposit basis may be asserted only when the mortgagee was aware of such circumstances (see Supreme Court Decision 2005Da59864, Feb. 9, 2

Meanwhile, considering that the right of lease on a deposit basis has both the nature of the right of lease on a deposit basis and the right of security, the registration of the right of lease on a deposit basis completed in the name of the lessee is valid unless there are special circumstances (see, e.g., Supreme Court Decisions 98Da20981, Sept. 4, 1998; 2001Da51336, Nov. 9, 2001). Therefore, even if the mortgagee who was mortgaged on the right of lease on a deposit basis as mentioned above knows such circumstances, the mortgagee should be deemed to have established a mortgage on the right of lease on a deposit basis as effective as security for the right of lease on a deposit basis. In this case, it is reasonable to view that the mortgagee may claim the deduction of all the claims against the lessee arising from the right of lease on a deposit basis, as in the ordinary lease agreement, as in the case of the mortgagee on a deposit basis (see, e.g., Supreme Court Decision 2003Da46260839, Jun. 25, 2004).

Meanwhile, in the lease of a real estate, the deposit that the lessee pays to the lessor is secured by all the obligations of the lessee arising from the lease relationship until the lease relationship terminates and the lessee returns the object. If the lessee fails to pay the rent or bears the obligation to compensate for damages arising from the use of the object or to return unjust enrichment, etc. by the time the lease contract is terminated, the lessor shall only return the remainder after deducting it from the deposit (see, e.g., Supreme Court Decision 2002Da52657, Dec. 10, 2002).

However, the fact that the right to lease on a deposit basis was established to secure the right to lease on a deposit basis as seen earlier. According to the evidence Nos. 3, 11, 1, 10, and 10-3 of the evidence No. 10 of the evidence No. 3 of the above, the plaintiff entered into a contract to establish a right to lease on a deposit basis on September 14, 2010, and submitted both the contract to change the right to lease on a deposit basis and the lease contract No. 1 on July 1, 2009, and the right to return the lease deposit against the defendant from the non-party No. 1 to the non-party No. 1 was transferred. According to the above, it is reasonable to view that the plaintiff established the right to lease on a deposit basis with the knowledge that the right to lease on a deposit basis was established for the purpose of securing the right to lease on a deposit basis. Moreover, the plaintiff received a collection order on the right to lease on a deposit basis on a deposit on a deposit basis on a deposit basis.

㈏. 지체차임 공제 주장에 대한 판단

However, the rent under the instant lease contract from July 1, 2009 to June 15, 201 is 5,8750,000 won (=2,500,000 won per month x 23 months 15). The Defendant is a person who was paid 32,50,000 won (15 million won per December 24, 2009 + 17,500,000 won per June 17, 2010). Thus, the Defendant was 15,00,000 won from the preparatory document from January 31, 2012 to June 15, 201, and was given a confession again on June 17, 2010, but it was revoked, but there is no evidence to acknowledge that the confession was true (i.e., 25,0000 won).

Although the defendant asserts that the value-added tax on rent should also be deducted, it is not sufficient to recognize that the defendant agreed to be separately paid the value-added tax on rent between the non-party 1 and the non-party 1, and has received the value-added tax separately from the non-party 1. The defendant's allegation in this part is without merit.

㈐. 공과금 및 점용료 공제 주장에 대한 판단

Unless special circumstances exist, such as that a lessee has agreed otherwise in the lease contract, the obligation related to the management expenses, water supply charges, electricity charges, etc. incurred for the use and profit-making of the object is attributable to the lessee’s obligation secured by the lease deposit due to the nature of the lease relationship (see, e.g., Supreme Court Decisions 2005Da8323, Aug. 28, 2005; 2012Da19154, Jun. 28, 2012).

However, in full view of Nonparty 2’s testimony and the purport of the entire pleadings, the unpaid electricity charges for the instant building during the lease period is two million won, and the sidewalk and the usage charges for the instant building used as a gas station are 2.5 million won. Thus, the Defendant’s allegation in this part is with merit.

㈑. 대여금 채권 상계주장에 대한 판단

The defendant asserts on April 9, 2010 that since the defendant lent 50 million won to Nonparty 1 on August 9, 2010 and 20 million won again on August 31, 2010, it offsets the loans with loans of 70 million won as loans.

In light of the nature of the deposit money, it cannot be deemed that the mortgagee of chonsegwon has secured other claims than the damage claim against the mortgagee of chonsegwon as stipulated in Article 315 of the Civil Act. Thus, even if the settlor of chonsegwon has other claims against the mortgagee, barring any special circumstances, it cannot be set up against the settlor of chonsegwon who has exercised the right of subrogation for the claim for the return of deposit money (see Supreme Court Decision 2006Da29372, 29389, Mar. 13, 2008). Meanwhile, the registration of the establishment of chonsegwon established for the purpose of securing the claim for the return of deposit money under the lease contract is valid in principle. Even if the mortgagee of chonsegwon was aware of such circumstance, even if the mortgagee of chonsegwon was aware of the mortgage, it shall be deemed that the mortgagee of chonsegwon has set up a mortgage on the right of lease in force for the purpose of securing the claim for the return of deposit money. In such case, the mortgagee of chonsegwon may claim for all the claims arising from the lease relationship with the mortgagee of chonsegwon, but it cannot be viewed against other claims for the right of subrogation.

However, the instant chonsegwon was established to secure the claim for the return of the lease deposit under the lease agreement with the agreement of rent, etc., and the Plaintiff was aware of such circumstances, and the Plaintiff received the instant collection order as to the claim for the return of the lease deposit by Nonparty 1 by exercising the subrogation right based on the right to lease on a deposit basis of the right to lease on a deposit basis. However, the fact that the lease agreement between the Defendant and Nonparty 1 was concluded on June 15, 201 is recognized as above. Accordingly, according to the foregoing, the instant right to lease on a deposit basis was registered for the purpose of securing the claim for the return of the lease deposit under the lease agreement, and the lease deposit is naturally secured only by the lessor’s claim arising from the lease agreement. Thus, it is reasonable to deem that the Defendant, the lessee, cannot be asserted as a set-off, etc. against the Plaintiff who exercised the right to subrogation for the claim for the return of the lease deposit with the loan to Nonparty 1 as a lessee.

3. Conclusion

Therefore, the Defendant is obligated to pay to the Plaintiff the remainder of the collection amount of KRW 69250,000 (10 million for rent - 26250,000 won for arrears - 4.5 million won for public imposts) and to pay damages for delay calculated at the rate of 5% per annum prescribed by the Civil Act from the date following the delivery date of the Plaintiff’s complaint, which is the day of the decision, until October 31, 2013, and 20% per annum prescribed by the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, etc., from the next day to the day of the full payment. Thus, the Plaintiff’s claim of this case is justified within the above recognition limit, and the remainder of the claim is dismissed for lack of any justifiable reason. Since the judgment of the first instance is unlawful on the grounds that the judgment of the Plaintiff is revoked, and the payment of the above amount is ordered to be made to the Defendant, and the remainder of the Plaintiff’s appeal is dismissed as per Disposition.

Judges Kim Sung-sung (Presiding Judge)