Plaintiff

Korea

March 26, 2009

Seoul Central District Court Decision 2008Gadan189207 Decided October 1, 2008

1. The judgment of the first instance, including the plaintiff's claim expanded in the trial, shall be modified as follows:

A. The defendant shall pay to the plaintiff 16,00,000 won with 5% interest per annum from June 3, 2008 to May 7, 2009 and 20% interest per annum from the next day to the day of full payment.

B. The plaintiff's remaining claims are dismissed.

2. Of the total litigation costs, 70% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

3. Paragraph 1(a) of this Article may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiff 80,000,000 won with 5% per annum from June 3, 2008 to the date of a final judgment of the trial court, and 20% per annum from the next day to the date of full payment (the plaintiff extended its claim for damages for delay at the trial).

2. Purport of appeal

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 80,000,000 won with 20% interest per annum from the day following the date of the judgment of the first instance to the day of full payment.

1. Facts of recognition;

The following facts may be acknowledged in full view of the purport of the entire pleadings, or of Gap evidence to Gap evidence to Gap evidence to 7, and Gap evidence to Gap evidence to Gap evidence to 12.

A. On June 27, 2006, the Nonparty leased the real estate listed in the separate sheet (hereinafter referred to as “instant real estate”) owned by it from the original soil (hereinafter referred to as “original soil”) on June 27, 2006 by setting the deposit amount of KRW 80 million, the period from July 4, 2006 to July 3, 2007, and completed the move-in report on July 7, 2006 after having occupied the instant real estate and having obtained a fixed date and received a move-in report on July 7, 2006. The Nonparty did not make a move-in report to “745-11”, which is the lot number of the instant real estate, and instead made a move-in report to “75-11” (after that, the Nonparty filed a move-in report by correcting it to “735-11”, which is the lot number of the instant real estate on November 3, 2006.

B. On June 27, 2006, the date of entering into a lease agreement, the Nonparty concluded a lease agreement on the instant real estate with the original land on July 4, 2006, and completed the registration of the establishment of a lease on a deposit basis with the deposit basis for the instant real estate as of July 3, 2007 (hereinafter “instant lease on a deposit basis”).

C. At the time of the Plaintiff’s completion of the registration of the creation of chonsegwon, no senior mortgage, provisional seizure, or seizure was registered on the instant real estate, but on September 5, 2006, the registration of creation of a mortgage near the real estate amounting to KRW 210 million with the creditor Credit Guarantee Fund, the debtor’s original land, and the maximum debt amount.

D. On May 21, 2007, Korea Labor Welfare Corporation applied for a compulsory auction as Seoul Central District Court No. 2007ta and 15036 on the instant real estate. The above court made a decision to commence compulsory auction on May 22, 2007, thereby proceeding with a compulsory auction (hereinafter “instant auction”) on the instant real estate.

E. In the auction procedure of this case, the Nonparty, along with the lease contract and the certified copy of the resident registration form on July 20, 2007, prior to the date of demand for distribution, filed a demand for distribution by submitting a report on the right and a written application for demand for distribution (house lease) stating as “The whole area of lease: the whole area of lease: the lease: from July 4, 2006 to July 4, 2007; the date of transfer: the date of July 4, 2006; the fixed date: July 4, 2006; the date of July 4, 2006; the date of occupancy; the date of the lease and the date of the lease and the lease on a deposit basis; and the date of the occupancy (the date of the house delivery): July 4, 2006.”

F. In preparing a specification of goods to be sold on August 1, 2007, the court of execution shall enter each of the non-party in the “the highest priority setting” column, “the right to the real estate” and “the possessor” column, respectively, and shall state the fact that the non-party reported his/her right as the lessee (the date of move-in moving-in report is entered as of July 7, 2006 only on the date of move-in report) and the fact that he/she demanded the distribution on July 20, 2007. On the other hand, the court of execution did not state any description in the “the date of demand for distribution” column, stating only the content that the deposit amount is KRW 80 million as the person having chonsegwon based on the certified copy of the register, and did not state any phrase in the “the right to the registered real estate or the provisional disposition, the effect of which is not extinguished by the permit for sale.”

G. The appraisal value of the instant real estate was assessed as KRW 100 million. On August 16, 2007, the Plaintiff filed a purchase report of KRW 112,60,000 on the first sale date and received a decision to permit sale thereafter. On September 13, 2007, the Plaintiff acquired the ownership by full payment of the price and completed the registration of ownership transfer on October 24, 2007. The registration of creation of the instant chonsegwon was cancelled by a compulsory auction on the same day.

H. On October 11, 2007, the executing court distributed the entire amount of KRW 110,012,227 to the Korea Labor Welfare Corporation, the applicant creditor, as the date of distribution.

I. After that, the Nonparty filed a lawsuit against the Plaintiff on the ground that the registration of the right to lease on a deposit basis was revoked even though the registration of the right to lease on a deposit basis was revoked due to the auction of this case, Seoul Central District Court 2007Gahap113422. On April 22, 2008, the above court rendered a favorable judgment against the Nonparty on the ground that the Nonparty’s demand for distribution as a lessee of the right to lease on a deposit basis cannot be deemed a demand for distribution as a person having a right to lease on a deposit basis, and that the right to lease on a deposit basis of this case is not extinguished due to the auction

(j) On May 8, 2008, the Plaintiff paid KRW 80 million to the Nonparty as a deposit for lease on a deposit basis.

2. Occurrence and scope of liability for damages;

A. Grounds for liability

(1) If the contents of a public official’s duty imposed on the public official are not simply for the public interest or to regulate the internal order of an administrative agency, but entirely or incidentally established to protect the safety and interests of individuals as members of society, the State shall be liable for damages sustained by the victim due to the public official’s breach of such duty to the extent acknowledged of proximate causal relation. In determining the existence of proximate causal relation, the State shall comprehensively take into account the probability of the general result, the purpose of Acts and subordinate statutes and other behavioral rules imposing duties, the circumstances after the act foreseeable from the purpose or function of the performance, the attitude of harmful act and degree of damages after the sale, etc. (see Supreme Court Decision 2005Da62747, Dec. 27, 2007). The purport of Article 105 of the Civil Execution Act provides that the executing court shall accurately prepare a detailed statement of the goods to be sold and keep the current status of the real estate subject to sale at the executing court or the purport of its disclosure to ensure that the public official can easily obtain damages from the sale.

(2) A court of execution shall prepare a detailed statement of the object of sale stating the indication of real estate, the possessor of the real estate and the title of possession, the period of possession, the statement by the interested parties on the rent or deposit, the statement by the right to registered real estate or provisional disposition, and the effect of which is not extinguished by the permission of sale due to the permission of sale, and keep the detailed statement of object of sale, etc. so that anyone can view it (Article 105 of the Civil Execution Act). Meanwhile, right of lease is extinguished by sale if it cannot oppose the mortgage, attached claim or provisional seizure claim (Article 91(3) of the Civil Execution Act). In other cases, it is extinguished by sale only if the buyer takes over the right of lease, but demand for distribution is made by the person having chonsegwon (Article 91(4) of the Civil Execution Act), unless the person having chonsegwon takes over the right of preferential reimbursement from the buyer of the right of lease on a deposit basis or by taking over the burden to the buyer of the right of preferential reimbursement from the right of lease on a deposit basis of lease (Article 97).

(3) According to the above facts, since the non-party did not enter the right to lease on a deposit basis at the time of completion of the registration of creation of the right to lease on a deposit basis, the right to lease on a deposit basis in this case is the highest priority right, and the non-party only demanded distribution as the lessee, and there are no special circumstances to deem that he demanded distribution as the right to lease on a deposit basis as the right to lease on a deposit basis. Thus, the right to lease on a deposit basis in this case is not extinguished by sale in the auction procedure. Nevertheless, the court of execution prepared the specification of the object to be sold in this case, but stated the fact that the non-party demanded distribution as the lessee, and did not state any indication in the "whether the right to lease on a deposit basis as the right to lease on a deposit basis or provisional disposition has not become invalid by the permission of sale on the registered real estate," and the plaintiff is liable to compensate the non-party, who is the right to lease on a deposit basis, for damages suffered by the plaintiff due to the tort by a public official.

(4) As to this, the defendant asserts that the specifications of the goods sold have no responsibility since the defendant neglected to take procedures for the remedy of the purchaser's rights through the plaintiff's objection to the permission for sale under Article 121 subparagraph 5 of the Civil Execution Act and the immediate appeal under Article 130 (1) of the same Act even if there is a serious defect in the preparation of the specifications of the goods sold in domestic affairs, since the specifications of the goods are merely a document stating the court's awareness, they belong to the factual act, and the conditions of the sale are not determined by them, or they do not affect the legal relationship under substantive law, and the purchase of the goods is conducted entirely under the judgment and responsibility of the purchaser, and even if there is a serious defect in the preparation of the specifications of the goods sold in domestic affairs, so long as the defendant prepared differently matters concerning the legal relationship between the purchaser's property to be sold in the specifications of the goods sold, so long as the defendant caused damage to the buyer, as alleged above, it cannot be deemed that the defendant is not liable for damages, or the causal relationship between the official misconduct and the plaintiff's damage.

B. Limitation on liability

According to the above facts, since the non-party did not state the fact that he demanded the sale of this case as a person with a right to lease on a deposit basis, the plaintiff could have easily known that the right to lease on a deposit basis of this case could not be extinguished if he had examined the copy of the register, etc. of the real estate of this case. In addition, the plaintiff neglected it, but did not properly examine who was the applicant creditor of this case and the non-party who was the lessee. In full view of all circumstances such as the error and the overall contents of the sale statement of this case, it is reasonable to limit the defendant's liability for damages against the plaintiff to 20% of the amount of damages.

C. Scope of liability for damages

Unless there are special circumstances, the amount that the Defendant is liable for damages to the Plaintiff is KRW 80 million, which is equivalent to the deposit money for the lease on a deposit basis paid to the Nonparty by the Plaintiff’s acquisition of the right to lease on a deposit basis. In light of the aforementioned Defendant’s liability ratio, the amount is KRW 16 million ( KRW 80 million x 0.2).

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 16 million won for damages and damages for delay calculated at the rate of 5% per annum as stipulated by the Civil Act from June 3, 2008 to May 7, 2009, which is the day after the delivery of a copy of the complaint of this case sought by the plaintiff, from June 3, 2008 to May 7, 2009, and 20% per annum as stipulated by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the day after the full payment is made. Thus, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claims shall be dismissed as without any justifiable reason. Since the judgment of the court of first instance is unfair on the grounds of a different conclusion, the plaintiff's appeal of this case shall be partially accepted and the

[Attachment List omitted]

Judges highest fever (Presiding Judge)