Whether a person having a right to lease on a deposit basis may request an auction procedure based on a claim for the return of deposit money without providing the delivery of the object of lease.

Since the obligation of the person having chonsegwon to deliver the subject matter of the lease on a deposit basis and the obligation to register the cancellation of the registration of the establishment of chonsegwon and the obligation to return the lease on a deposit basis with the settlor of chonsegwon to simultaneously perform the obligation to deliver the subject matter of the lease on a deposit basis and to request an auction for the subject matter of the lease on a deposit basis, the creditor who is the person having chonsegwon should first place the settlor of chonsegwon

Articles 317 and 318 of the Civil Act

Re-appellant

Chuncheon District Court Order 76Ra38 dated February 24, 1977

The order of the court below is reversed and the case is remanded to Chuncheon District Court Panel Division.

We examine part of the re-appellant's grounds for re-appeal.

According to the purport of Articles 317 and 318 of the Civil Act, the obligation of the person having chonsegwon to deliver the subject matter of lease on a deposit basis, the obligation to register the cancellation of the registration of the establishment of chonsegwon and the obligation to return the lease deposit money to the settlor of chonsegwon is related to the simultaneous performance. In this case, in order for the creditor, who is the person having chonsegwon, to file a claim for auction of the subject matter of lease on a deposit basis, he should first complete the obligation to deliver the subject matter of lease on a deposit basis and the obligation to cancel the registration of the establishment of chonsegwon on a deposit basis, and cause the settlor of chonsegwon to delay the performance. The re-appellant of this case asserts that the auction obligee of this case is an abuse of right to request auction of the subject matter

The court below held that it is difficult to regard these arguments as abuse of rights. However, the court below should find out whether the above arguments are asserted as to simultaneous performance as mentioned above. If so, the court below's permission of auction of this case without examining whether the auction creditor of this case offered performance as mentioned above is illegal, and therefore the court below's order is reversed and the case is remanded to Chuncheon District Court Panel Division. Accordingly, the court below's decision is omitted with regard to the remaining reappeals. This decision is consistent with all participating judges' decisions.

Justices Kim Yong-chul (Presiding Justice)