1. The part against the defendant in the judgment of the first instance shall be revoked;
2. The plaintiff's claim against the defendant is dismissed.
1. Basic facts
A. On January 20, 2008, the Plaintiff entered into a lease agreement with the Defendant, who represented by F on behalf of F, for the whole four floors of the fourth floor of the building on the G ground (hereinafter “instant building”) owned by the F and agreed to pay the lease deposit by dividing the lease deposit into KRW 50,000,000, monthly rent of KRW 1,500,000, monthly rent of KRW 1,500,000, and the lease term from January 31, 2008 to January 31, 2010 (hereinafter “instant lease agreement”). The said lease deposit was paid by dividing the lease deposit into KRW 30,00,000 on the date of the contract, KRW 10,000,000 on February 29, 2008, and KRW 10,000,000 on August 31, 2008.
B. After remitting 30,000,000 to F’s account on January 20, 2008, the Plaintiff operated a screen golf course with the fourth floor of the instant building delivered, and additionally remitted KRW 10,000,000 to F on February 29, 2008.
C. The F died on April 20, 2008. The inherited property was jointly inherited by the co-defendant C, D, and E of the first instance court, the Defendant and his children, who are F’s wife. On October 1, 2008, on the instant building, the registration of ownership transfer was completed on April 20, 2008 by agreement and division.
Around August 2008, the Plaintiff agreed with the Defendant to reduce the lease deposit to KRW 40,000,000 under the instant lease agreement with the Defendant, and did not pay any further lease deposit.
E. On December 29, 2008, the Defendant entered into a trust agreement on the instant building (hereinafter “instant trust agreement”) with Daol Trust Co., Ltd. (Daol Real Estate Trust Co., Ltd. prior to the change of name; hereinafter “Daol Trust”) and completed the registration of ownership transfer on December 30, 2008 with respect to the instant building.
Of the terms of the instant trust agreement, the provisions pertaining to the instant case are as follows.
Article 9 (Preservation, Management, etc. of Trust Real Estate) (1) The defendant shall virtually continue to possess and use trust real estate, maintain, repair, etc. the actual management of trust real estate, and all the acts required therefor.