Plaintiff (Law Firm Chang, Attorneys Cho Jong-hwan et al., Counsel for the plaintiff-appellant)

[Defendant-Appellee] The Korea Development Bank (Attorney Choi Jong-soo, Counsel for defendant-appellee)

April 14, 2009

Suwon District Court Decision 2008Gahap2445 Decided October 15, 2008

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall implement the procedure for cancellation registration of provisional seizure of the right to lease on a deposit basis, which was completed on December 1, 2004 by the receipt of No. 9078 of the same registry office in relation to the registration of the right to lease on a deposit basis, which was completed on November 27, 2001 by the Sungwon District Court Branch Branch Branch of Sungwon District Court Branch of Sungnam Branch of Branch Branch of Branch Office of Branch Office of

2. Purport of appeal

The part against the defendant in the judgment of the first instance is revoked, and the plaintiff's claim against the defendant is dismissed.

1. Basic facts

This Court's reasoning for this part is as follows: "Codefendant 1 (the Nonparty of the Judgment of the Supreme Court) of the first instance court" is "Codefendant 1 of the first instance court"; and "this Court" of the third, 12 and 13 is the same as the corresponding part of the judgment of the first instance court (paragraph 1) in addition to the fact that "Codefendant 1 of the first instance court (the Nonparty of the Judgment of the Supreme Court)" is "Codefendant 1 of the third, 3, 12 and 13

2. The party's assertion and judgment

A. Judgment on the ground of the plaintiff's claim

According to the above facts, the lease contract between the plaintiff and the co-defendant 1 of the court of first instance, which is the legal relationship indicated in the registration of chonsegwon, was terminated on November 26, 2001 due to the expiration of the term on December 31, 2003, and thereafter, the plaintiff returned the lease deposit amount of KRW 100 million to co-defendant 1 of the court of first instance until March 3, 2004, and the claim for the refund of the lease deposit amount of this case has expired. Thus, co-defendant 1 of the court of first instance is obligated to cancel the registration of chonsegwon of this case to the plaintiff, and the defendant is a third party interested in the registration, who is obligated to express his consent for the cancellation registration of chonsegwon of the registration of this case to the plaintiff.

B. Judgment on the defendant's assertion

1) As to this, the Defendant asserts that even if the contract to establish a right to lease on a deposit basis with the Plaintiff and the co-defendant 1 of the first instance trial conspired to do so, insofar as the Plaintiff did not refund the whole amount of KRW 300 million on the registration of the right to lease on a deposit basis to co-defendant 1 of the first instance trial, it cannot be asserted against the Defendant who is a bona fide third party before the registration of the right to lease on a deposit basis of the right to lease on a deposit basis was cancelled.

On the basis of the fact that the contract to establish a right to lease on a deposit basis with the plaintiff and the co-defendant 1 of the first instance court prepared a document to establish a right to lease on a deposit basis with the external form of KRW 300 million and completed the registration of the right to lease on a deposit basis. However, the third party who is unable to oppose the invalidity of the false indication refers to a person who has an interest as a new legal cause based on the legal relationship formed by the false indication. The defendant had an interest as a new legal cause. On December 31, 2003, before the provisional attachment registration was completed for the registration of the right to lease on a deposit of this case, the term of the right to lease on a deposit of this case had expired, and the lease deposit was returned in full. Thus, it is difficult to view that there was a legal relationship in a external form to protect the defendant's trust merely because the registration of the right to lease on a deposit basis of this case remains without cancelling the registration of the right to lease on a deposit. Thus, the above argument by the defendant is without merit (the person who has an interest in the legal relationship after the third party.

2) The Defendant asserted that the legal renewal of the lease agreement between the Plaintiff and Co-Defendant 1 of the first instance trial on November 26, 2001 constitutes a change in real rights pursuant to the provisions of law, and thus, the registration of the right to lease on a deposit basis of this case remains effective even without the registration of change in the term of the lease. However, the Plaintiff and Co-Defendant 1 of the first instance trial on November 26, 2001 concluded the lease contract with the lease deposit amount of KRW 70,00,000 as of December 30, 203 as of December 31, 2005 after the termination of the lease agreement, as seen earlier, there is no room to acknowledge the Defendant’s above assertion that the legal renewal under the premise that the parties did not express any intention.

3) In addition, the defendant may exercise his right to claim for the return of the lease on a deposit basis, even if the right to claim for the return of the lease on a deposit basis has expired due to the expiration of the term of the lease on a deposit basis, by either receiving a collection order or an order in whole, or demanding a distribution in the compulsory execution procedure conducted by a third party against the claim for the return of the lease on a deposit basis. Thus, the registration of the lease on a deposit basis of this case remains effective within such limit. However, the lease on a deposit basis of this case is not only after the term of the registration expires but also upon the plaintiff's return of the lease deposit to the co-defendant 1 of the first instance trial, and all the claims for the return of the lease on a deposit basis are extinguished

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and since the part against the defendant in the judgment of the court of first instance is justified with its conclusion, the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

[Omission of Indication of Real Estate]

Judges Landscaping Co., Ltd. (Presiding Judge)