Plaintiff (Attorney Min-soo et al., Counsel for the plaintiff-appellant)

Defendant 1 and two others

Defendant joining the Defendant (Attorney Kim Jong-hoon, Counsel for defendant-appellant)

March 24, 2017

Gwangju District Court Decision 2016Gau238 Decided September 21, 2016

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. The total cost of the lawsuit (including the part arising from the supplementary participation) shall be borne by the plaintiff.

1. Purport of claim

The Defendants shall pay to the Plaintiff the amount of KRW 6,00,000,000 per annum within the scope of the property inherited from the deceased Nonparty 1 and the amount calculated by the rate of KRW 15% per annum from the day following the day of delivery of the copy of the complaint of this case to the day of full payment.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

A. On August 15, 2002, the Plaintiff: (a) from the deceased Nonparty 1 (hereinafter “the deceased”), the part on the second floor of the building on the ground (location omitted); (b) the time limit from August 18, 2002 to August 17, 2004 (hereinafter “the instant lease”); and (c) paid the deceased KRW 18 million total amount of deposit to the deceased from August 18, 2002 until August 18, 2002.

B. After the expiration of the lease term of the instant lease contract, the Plaintiff demanded the deceased to return the lease deposit. However, on June 28, 2005, the deceased did not return it, the Plaintiff completed the registration of the lease of the housing on the second floor of the instant building on the ground of the lease order of 2005Kaga1092, Gwangju District Court 2005.

C. The Deceased died on February 22, 2005, and Nonparty 2, the spouse of the Deceased, the Defendants, and Nonparty 3 inherited the rights and obligations of the Deceased’s property.

D. Around May 10, 2005, Nonparty 3 received a report to waive the deceased’s inheritance. On August 11, 2005, Defendant 2 and Nonparty 2 reported the qualified acceptance of the deceased’s inheritance to the Gwangju District Court’s Family Branch Branch No. 2005Ra922 on August 14, 2005, and received an adjudication from the above court on August 19, 2005. Defendant 1 and Defendant 3 reported the qualified acceptance of the deceased’s inheritance to the Gwangju District Court Branch No. 2005Ra1044 on September 13, 2005, and received the said report from the above court on September 14, 2005.

E. Nonparty 2 died on March 22, 2008, and the Defendants, the deceased Nonparty 2’s children, succeeded to the deceased Nonparty 2’s property.

[Ground of recognition] Unsatisfy, entry of Gap 1 through 5 (including branch numbers if there are branch numbers) and the purport of the whole pleadings

2. Whether a request for intervention is lawful;

A. In order to intervene in an assistance to assist one of the parties in a specific litigation case, there must be an interest in the outcome of the relevant lawsuit. The term "interest" refers to a legal interest, not in fact, economic or emotional interest, and it refers to a case where the judgment is subject to res judicata or executory power of the relevant lawsuit, or where the judgment does not directly affect the effect of the relevant lawsuit, at least a case where the legal status of a person who intends to participate in an assistance is determined on the premise of the judgment (see Supreme Court Decision 2005Da19156, Apr. 26, 2007, etc.).

B. According to the purport of the argument in Eul evidence No. 1, the part of the first floor of the building of this case was leased from the Deceased on May 2, 2002, and Nonparty 4 filed a lawsuit against the Deceased on August 11, 2004 to pay the above lease deposit amount of KRW 25 million, and the judgment in favor of Non-Party 4 was sentenced on October 15, 2004 (U.S. District Court 2004Da58012). The defendant acquired the lease deposit return claim from Non-Party 4 on October 15, 2014, and the plaintiff filed the lawsuit against the Defendants on March 18, 2016.

C. In light of the above facts and legal principles, the plaintiff and the defendant joining the defendant, who are creditors against the defendants in accordance with the judgment of the lawsuit of this case filed by the plaintiff, are different from the amount to be actually paid out of the property qualified as the defendants' qualified acceptance. Thus, the defendant joining the defendant is in a relationship that determines legal status on the premise of the conclusion of the judgment of the lawsuit of this case.

3. Determination on the cause of the claim

According to the above facts, the Defendants, who inherited the deceased’s obligation to return the lease deposit of this case against the deceased, are obligated to pay the Plaintiff KRW 6 million according to their respective shares of inheritance within the scope of the inherited property from the deceased, unless there are special circumstances.

4. Judgment on the Defendant’s Intervenor’s defense of extinctive prescription

A. The parties' assertion

1) The plaintiff's assertion

Since the Plaintiff occupied directly or indirectly the second floor of the instant building through Nonparty 5, who was the Plaintiff’s leakage and the land Nonparty 6, the Plaintiff, and thus, the claim for the refund of the lease deposit of this case did not extinguish by prescription.

2) Defendant’s assertion

The lease contract of this case terminated on August 17, 2004, and the Plaintiff, as the director, lost possession of the second floor of the building of this case, and did not exercise the right to return the lease deposit of this case for the next ten years, the right to return the lease deposit of this case expired by prescription.

B. Determination

1) The reasoning for this part of this Court is as stated in Article 420 of the Civil Procedure Act (main sentence of Article 420 of the Civil Procedure Act).

2) According to the evidence Nos. 6-1 and 2-2, it is recognized that Nonparty 6 completed a move-in report on the building of this case on March 2, 2011, and Nonparty 6 prepared a confirmation document stating that Nonparty 5 continued to reside on the second floor of the building of this case even after the registration of housing lease was made in 2005.

However, in light of the following circumstances acknowledged as above, ① the time when the lease contract of this case was terminated on August 17, 2004, Nonparty 6 completed the move-in report on the building of this case from around six and a half years to around six months, ② the Plaintiff and Nonparty 6 cannot be deemed as having any direct possession relationship between the Plaintiff and Nonparty 6, ③ there is no objective data to prove that Nonparty 5 occupied the second floor of the building of this case, ③ there is no objective data to prove that Nonparty 5 occupied the second floor of the building of this case, the Plaintiff cannot be deemed to have maintained its de facto control by continuing direct or indirect possession of the second floor of the building of this case even after the expiration of the lease term of this case. Accordingly, the extinctive prescription of the right to refund the lease deposit of this case shall begin from August 17, 2004, when the lease contract of this case was terminated.

3) The ten-year extinctive prescription period under Article 162(1) of the Civil Act is applied to the claim for the return of the lease deposit of this case. Since it is apparent in the record that the lawsuit of this case was filed on March 18, 2016 after the lapse of ten years from August 17, 2004, which was the starting point of the extinctive prescription period for the claim for the return of the lease deposit of this case, the claim for the return of the lease deposit of this case had already been completed and expired. Accordingly, the defendant’s defense is with merit

5. Conclusion

Thus, the plaintiff's claim of this case shall be dismissed as it is without merit. Since the judgment of the court of first instance with different conclusions is unfair, it is revoked and the plaintiff's claim is dismissed. It is so decided as per Disposition.

Judges Lee Jae-chul (Presiding Judge)