(a) In cases of land lease the object of which is to own a building, effects of a special agreement made at any time to remove the building on the ground, if requested by a lessor;

(b) Whether the successful bidder of a building, the sale of which was made by exercising his right to purchase succeeds to the establishment of the seller as the former owner or to the right to claim payment.

A. In concluding a land lease for the purpose of owning a building, even if the lessee at any time requested by the lessor to remove the land and building at any time, the said special agreement is unfavorable to the lessee, and is null and void by Article 652 of the Civil Act.

B. It cannot be deemed that a lessee, by exercising a claim for purchase, has already been awarded a successful bid on a building that had already been sold, and as a matter of course, succeeds to the establishment of a seller as a seller or a claim for payment of the price as a result of a separate succession

Articles 643 and 652 of the Civil Act

Seoul High Court Decision 80Da2312 decided Dec. 23, 1980; 80Da2312 decided Dec. 23, 198 (Non-resident I Article 283 (13) 563 of the Civil Act, 12565 Doz. 28Third civil249 No. 13575 decided Dec.

Plaintiff

Defendant

Suwon District Court of the first instance (84 Gohap314, 84 Gohap356 (Counterclaim))

1. The judgment of the court of first instance is modified as follows.

A. The succeeding intervenor(s) remove the building recorded in the attached list to the plaintiff(s) and deliver the land to the plaintiff(s) at 300 square meters in return for the Gyeonggi-gun(s) of the land.

B. The plaintiff (Counterclaim defendant)'s main claim and preliminary claim against the plaintiff (Counterclaim plaintiff) are all dismissed.

C. The plaintiff (Counterclaim defendant) shall pay to the defendant (Counterclaim plaintiff) an amount equivalent to 372,600 won and an amount equivalent to 25 percent per annum from March 11, 1984 to the date of full payment.

D. The defendant (Counterclaim plaintiff)'s remaining counterclaim is dismissed.

2. The remaining appeal and the claim of the Intervenor by the Plaintiff (Counterclaim Defendant) are dismissed.

3. Of the costs of lawsuit, the part incurred by the principal lawsuit through the first and second trials shall be borne by the Defendant (Counterclaim Plaintiff) and the Intervenor. The part incurred by the counterclaim shall be borne by ten minutes, and the remainder shall be borne by the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff). The part incurred by the participation by succession to the counterclaim shall be borne by the successor.

4. The above 1 paragraph (a) can be provisionally executed.

The Defendant (Counterclaim Plaintiff; hereinafter referred to as the “Defendant”) removes the building indicated in the attached list around the Plaintiff (Counterclaim Defendant; hereinafter referred to as the “Plaintiff”) and delivers the land indicated in the attached list to the Plaintiff.

Preliminaryly, the registration procedure for transfer of ownership for the sale of the building will be implemented.

The judgment that the lawsuit costs shall be borne by the defendant and the declaration of provisional execution against the main claim.

The plaintiff shall pay to the defendant the amount of KRW 10,970,400 and the amount at the rate of 25 percent per annum from the day following the service of the counterclaim to the day of full payment, and the costs of lawsuit shall be borne by the plaintiff and a provisional execution declaration.

The Defendant and the Intervenor (the Plaintiff) filed an application for intervention in the acquisition pursuant to Article 75 of the Civil Procedure Act with respect to the principal lawsuit, and the Intervenor filed an application for intervention in the succession pursuant to Article 74 of the same Act with respect to the counterclaim, and the Intervenor confirmed that the Defendant’s right to claim the payment of KRW 9,480,000 for the buildings listed in the attached list, which the Defendant had against the Plaintiff, and KRW 372,60 for the beneficial cost for the land listed in the order, belongs to the Intervenor.

The plaintiff pays 9,852,600 won to the intervenors.

The judgment and the declaration of provisional execution that the part arising from the participation in the lawsuit shall be borne by the plaintiff and the defendant.

The part against the plaintiff in the original judgment shall be revoked.

The defendant removes the building in the attached list to the plaintiff and deliver the land in the attached list.

The defendant's counterclaim is dismissed.

The costs of lawsuit shall be assessed against the defendant in both the principal lawsuit and the counterclaim, and a declaration of provisional execution.

1. Judgment on the plaintiff's main claim

A. On September 25, 1970, the co-defendants of the court below set the lease period of 300 square meters (hereinafter referred to as "this case's land") from the non-party for the purpose of owning the building by September 30, 1972, and constructed and owned the buildings attached to the attached list (hereinafter referred to as "this building") on the ground. On September 17, 1980, the non-party transferred this case's land to the plaintiff as his wife and completed the registration of ownership transfer on August 26, 197, and the plaintiff acquired the ownership of this case's land and completed the registration of ownership transfer in the name of the non-party's lessor's status as the tenant of the non-party as the non-party's right to lease from the immediately preceding acquisition of ownership of the building, and the non-party's right to lease and the non-party's right to lease as the lessee of the non-party's right to lease to the non-party and the non-party's right to lease.

B. First, according to the Plaintiff’s claim against the Defendant, the Defendant lost ownership of the building in this case and the Defendant lost possession of the land in this case, barring special circumstances, barring special circumstances. Therefore, the Plaintiff’s primary claim against the Defendant seeking the removal of the building in this case and the transfer of the land in this case against the Defendant based on the ownership of the land in this case (the termination of the lease contract is selectively asserted) was without merit.

In addition, according to the above facts, the defendant acquired the right to purchase the building of this case against the plaintiff (the plaintiff asserted that the non-party and the co-defendants of the court below agreed to remove the building at any time upon the request of the tenant at the time when concluding the first lease contract between the non-party and the co-defendants of the court below, and that the special agreement unfavorable to the lessee is null and void as it violates the provisions of Article 643 of the Civil Code. Thus, the plaintiff's defense is groundless). The defendant exercised the above right to purchase against the plaintiff on the third day of pleading of the court below on February 8, 1984, it is evident in the record that the above right to purchase was exercised between the plaintiff and the defendant. As a result of the above right to purchase, the sale of the building of this case was established and the plaintiff's duty to pay the price, the name of the defendant's building, and the obligation to transfer the ownership of this case were in simultaneous performance relationship, and the defendant was dismissed as the plaintiff's conjunctive right to purchase the building of this case.

C. Following the Plaintiff’s claim against the Intervenor, as seen above, the Intervenor acquired the ownership of the building in this case during the course of the instant lawsuit and possessed the instant land. As such, the Intervenor is obligated to remove the building and deliver the instant land to the Plaintiff, unless the Intervenor asserts a legitimate title to occupy the instant land.

First, the intervenors have invoked the defendant's right to demand purchase based on the premise that the intervenors acquired the ownership of the building in this case and the right to demand purchase is naturally succeeded to the right to demand purchase that is attached to the status of the seller of the plaintiff who occurred due to the exercise of the defendant's right to demand purchase or the right to demand purchase that is attached to the simultaneous performance. Therefore, the intervenors cannot be viewed as naturally succeeding to the status of the seller as the former owner or the right to demand the payment of the building without any separate cause of succession because they exercised the right to demand purchase and sold the building in this case. Furthermore, as seen in the judgment of the counterclaim claim, since the above right to demand the payment was retroactively extinguished due to the cancellation of the right to demand purchase and the right to demand the purchase of the building held by the former owner after the termination of the right to demand purchase and the right to demand the purchase of the building can not be exercised again, since the intervenors' right to demand purchase and the above defense cannot be accepted.

Second, the intervenors have invoked the right of retention based on the defendant's above right of reimbursement for beneficial non-performance, on the premise that the intervenors acquired ownership of the building in this case and the defendant's right of reimbursement for beneficial non-performance also succeeded to the right of reimbursement for the above right of reimbursement for beneficial non-performance. Therefore, as seen in the following decision of the counterclaim, the defendant has the right of reimbursement for beneficial costs invested in the land in this case against the plaintiff. However, it is not naturally succeeded to the right of ownership of the building in this case, and it is not proved that the above right of retention is not inherited as a matter of course, and it is not proved that there is no other reason to acquire the right of reimbursement.

2. Judgment on the defendant's counterclaim

A. First, as seen earlier, the sale and purchase of the building was established between the plaintiff and the defendant as the Defendant’s exercise of the Defendant’s above right to purchase and sell the building. According to the appraiser’s market price appraisal result, the market price of the building of this case at the time the sale and purchase was completed can be recognized as constituting 9,480,000, and there is no other counter-proof.

In order to seek the payment of the above purchase price to the plaintiff, the plaintiff argued that the defendant lost the ownership of the building in this case and the defendant's obligation to implement the procedure for registration of ownership transfer was impossible. Thus, the above sale of the building in this case was cancelled as a service of a preparatory document on November 26, 1984. Thus, this case was successful against the participant in the procedure for compulsory auction, and the defendant's obligation to register ownership transfer of the building in this case occurred due to the exercise of the above right to purchase was impossible. Thus, even though the non-performance was caused by compulsory auction and it was not caused by voluntary disposition, it cannot be concluded that there was no cause attributable to the defendant. Thus, the above non-performance is not caused by the defendant's cause attributable to the defendant. Accordingly, the above sale of the building in this case between the plaintiff and the defendant was legally cancelled at the time of exercise of the above right to purchase the purchase price as the date when the above preparatory document was served to the defendant.

B. In full view of the following, the defendant's claim for reimbursement of beneficial costs, and the above-mentioned appraisal result, the co-defendants in the court below's judgment increased the value of this land by leasing this parcel of land and raising the value of this land for the purpose of construction. The increase in the value of this land still exists, as seen above, the defendant can be found to have succeeded to the right to claim reimbursement of the above beneficial costs incurred at the time of termination of the lease contract in succession to the lessee's status of this parcel of land from the co-defendants in the court below as mentioned above, and there is no conflict between the parties, and the above right to claim reimbursement of the beneficial costs is due at the time of termination of the lease contract, and the above right to claim reimbursement of the beneficial costs has become due. Accordingly, the plaintiff is obligated to pay the defendant the above input costs of KRW 372,600 as selected by the plaintiff.

The plaintiff asserts that the right to claim reimbursement of the above beneficial costs is not exercised within six months after the termination of the lease and has already terminated. However, the tenant's right to claim reimbursement of the beneficial costs can be exercised within six months from the date of delivery to the lessor, and it is evident that the defendant's right to claim reimbursement of the beneficial costs was made by the plaintiff's action in the first instance court where the land was occupied. Thus, the plaintiff's defense is rejected.

3. Judgment on the Intervenor’s claim for intervention in succession

The intervenors, based on the premise that the Defendant succeeded to the right to purchase the above building and the right to claim reimbursement of beneficial costs, based on the ownership of the building in this case, as seen earlier, by succession to the Defendant’s counterclaim, on the premise that the Defendant succeeded to the right to claim payment of the purchase price and the right to claim reimbursement of the above beneficial costs. The Intervenor sought payment of the above purchase price and the right to claim reimbursement of beneficial costs against the Intervenor, but it cannot be deemed that the Intervenor succeeded to the Defendant’s claim for the above purchase price and the right to claim reimbursement of beneficial costs, as seen in the defense determination of the Intervenor on the merits. Accordingly, each of the above claims by the intervenors return to the Intervenor as well as

4. Conclusion

Therefore, the intervenors are obligated to remove this building to the Plaintiff and deliver the land of this case, which is its site. The plaintiff is obligated to pay damages for delay at the rate of 25 percent per annum from March 11, 1984 to the full payment date under the record, which is the day following the delivery date of the counterclaim sought by the defendant, as the amount of 372,600 won for beneficial costs and after the above payment period has expired. Thus, the plaintiff is obligated to pay damages for delay at the rate of 372,60% per annum from March 11, 1984 to the day after the counterclaim is served. The plaintiff's claims against the intervenors in the principal lawsuit are justified. The plaintiff's main claim against the defendant and the main claim against the defendant, the remainder of the defendant's counterclaim and the plaintiff against the defendant, and each claim against the defendant are dismissed without merit. Since the original judgment has been partially different, the remaining appeals of the plaintiff and the plaintiff's participation in the trial at the original trial shall be dismissed as ordered by a provisional execution.

Judges Kim Sung-il (Presiding Judge)