Plaintiff (Attorney Lee Ho-soo et al., Counsel for the plaintiff-appellant)

Defendant 1 and 1 (Attorney Kim Jae-hoon et al., Counsel for the defendant-appellant)

October 11, 2006

Daegu District Court Decision 2003Da126439 Delivered on July 15, 2005

1. Of the judgment of the court of first instance, the part against the plaintiff falling under the following order shall be revoked.

2. (Subject to the second preliminary claim added at the trial, Defendant 1 (Defendant 1 in the judgment of the Supreme Court) is the Plaintiff:

A. At the same time, the Plaintiff received KRW 39,288,940 from the Plaintiff, and at the same time, the building listed in [Attachment List No. 469-1] of Daegu Suwon-dong 469-1, was cancelled on September 27, 2001 by the date of cancellation of the registration of the establishment of a neighboring mortgage on December 12, 2005, and ordered the same building for sale;

(b) deliver each land listed in separate sheet 1 to 8;

C. From March 1, 2005 to the date of completion of the above surrender shall be 400,000 won per month.

3. The plaintiff's remaining appeal against the defendant 1 and the appeal against the defendant Daegu Bank shall be dismissed, respectively.

4. Of the costs of lawsuit, 1/2 of the portion arising between the Plaintiff and Defendant 1 shall be borne by the Plaintiff, the remainder by the same Defendant, and the portion arising between the Plaintiff and Defendant Daegu Bank shall be borne by the Plaintiff

1. As to Defendant 1

(1) Of the judgment of the first instance court, the part against Defendant 1 is revoked. (2) Defendant 1: (1) to the Plaintiff; (2) to the Plaintiff, the Daegu District Court completed the procedure of cancelling the ownership transfer registration on August 2, 200; (2) to order the buildings listed in the separate sheet No. 9; (3) to deliver each land listed in the separate sheet No. 1 through 8; and (4) to pay the Plaintiff money calculated at the rate of KRW 400,000 per month from May 1, 2004 to the date of completing the above name and delivery (the first preliminary registration) to the Plaintiff; (2) to deliver each land listed in the separate sheet No. 1 to 8; (3) to the Plaintiff from May 1, 2004 to the date of delivery; and (4) to pay the amount equivalent to KRW 1 to 200 to the Plaintiff as stated in the separate sheet No. 1 to 200; and (2) to pay the amount equivalent to KRW 201 to the ownership of the Plaintiff as stated in the separate No.2.

2. As to the defendant Daegu Bank

Of the judgment of the court of first instance, the part against the defendant Daegu Bank is revoked. The defendant Daegu Bank will implement the registration procedure for cancellation of the registration of the establishment of a neighboring mortgage completed by the Daegu District Court No. 5483, Sept. 27, 2001 with respect to the building listed in the attached list No. 9 to the plaintiff.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the whole purport of the pleadings in each statement of evidence Nos. 1, 5 through 11, 16, 17-1, 2, and 3:

A. Each land listed in the separate sheet Nos. 2 and 4 is the co-ownership of the Plaintiff and Nonparty 1, the Plaintiff’s children, and the above ground buildings (23.37 square meters on the land listed in the separate sheet No. 2 attached Table No. 1966, which were constructed in around 1966, and are very old buildings with a 125.96 square meters of cement subdivision, reticulator, cement reticulator, cement reticulator, 149.98 square meters, and a 96 square meters of cement reticulator, cement reticulator, reticulator and reticulator, etc.; hereinafter “the instant existing building”). Each land listed in the separate sheet No. 1 through 8 was owned or managed by the Plaintiff, and is adjacent to each other.

B. On November 24, 1995, Nonparty 2 leased the period of the existing building of this case from the Plaintiff to November 2000 and used it while operating the restaurant.

C. After that, on July 8, 200, the Plaintiff entered into a lease agreement with Defendant 1 for the lease of approximately KRW 2,000 (hereinafter referred to as “instant lease agreement”) and KRW 400,000,00 of the previous building, including each land listed in the attached Tables Nos. 2 and 4, and for the lease of the existing building of this case (hereinafter referred to as “instant lease agreement”) with the following agreement, and received KRW 500,000,000 for the down payment as follows.

1. Lighting Day: December 31, 2000 (the period shall be fixed in consideration of the period of lease of the above non-party 2)

(2) Term of lease: Five years from the date when defendant 1 received an order of the object of lease.

(3) For a restaurant business, a lessee may remove part of the existing building of this case and the number of dead or sick fruits, and extend or construct a new building, but upon the expiration of the term of lease, he/she shall deliver the extended or newly built building and the trees planted to the lessor as the present condition.

D. Meanwhile, on August 2, 200, the registration of preservation of ownership of the existing building of this case was completed in the Plaintiff’s future on July 28, 200, and on July 28, 2000, the registration of ownership transfer as stated in the primary purport of the claim against Defendant 1 (hereinafter “the registration of ownership transfer”) was completed on July 28, 200, and on February 15, 2001, the registration of the change of the lot number was completed at 469-1, Daegu Suwon-dong, Daegu-dong, 468, Seosung-dong, Daegu-dong, Daegu-dong, 469-1, and on September 6, 2001 (hereinafter “the new building of this case”). The registration of reconstruction was completed on September 9, 201, and the registration of the new building of this case was entered on the new building of this case in the name of the Defendant as stated in the purport of the claim against Defendant Daegu Bank as to the new building of this case.

2. Determination

A. As to the primary claim against Defendant 1 and the claim against Defendant Daegu Bank

1) As to the registration of ownership transfer and cancellation of the registration of establishment of neighboring mortgage, the name of the building and the land delivery portion

In order for Defendant 1 to obtain permission for the establishment of the existing building of this case to remodel the existing building of this case and obtain permission for the establishment of a store business, the Plaintiff and Nonparty 1 issued a certificate of personal seal impression, etc., and did not sell the existing building of this case. Defendant 1 forged documents necessary for the registration for the establishment of the ownership transfer of this case, such as the sales contract, and completed the registration for the establishment of the ownership transfer of the existing building of this case by using a certificate of personal seal issued by the Plaintiff, etc., and Defendant 1 completed the registration for the establishment of the ownership transfer of this case. Accordingly, Defendant Daegu Bank completed the registration for the establishment of the ownership transfer of this case. Thus, the registration for the establishment of the ownership transfer of this case is the registration for the invalidation of the establishment of the existing building of this case, or the registration for the establishment of the ownership transfer of this case is the registration for the establishment of the ownership transfer of this case which is null and void by a false conspiracy or a false declaration of intention between the Plaintiff and Defendant 1.

Therefore, regardless of the Plaintiff’s intention, Defendant 1 forged documents necessary for the registration of ownership transfer of the existing building, or examined as to whether the above new building was registered with the non-party 1’s non-party 2’s non-party 1’s non-party witness’s non-party 3’s testimony as to the non-party 1’s non-party 2’s non-party 1’s non-party 2’s non-party 1’s non-party 2’s non-party 1’s non-party 2’s non-party 1’s non-party 2’s non-party 1’s non-party 2’s non-party 2’s non-party 1’s non-party 1’s non-party 2’s non-party 2’s non-party 3’s non-party 1’s non-party 1’s non-party 2’s non-party 3’s non-party 1’s non-party 2’s non-party 3’s non-party 2’s non-party 2’s non-party 3’s non-party 2’s non-party.

2) As to the portion of unjust enrichment of the clinical party

The plaintiff asserts that he did not pay rent after May 1, 2004, that he was obligated to pay rent or unjust enrichment equivalent to rent from May 1, 2004 to the removal of the new building of this case and the delivery of the leased land of this case. Thus, according to the evidence Nos. 4, 19, 22, and 13, according to the statement No. 13, Defendant 1 paid rent from April 2001 to February 2005, Defendant 1 occupied and used the leased land of this case as mentioned above, and Defendant 1 occupied and used the leased land of this case from May 1, 2004 to February 1, 2005. Since it is confirmed that the rent was the same amount as the rent thereafter, Defendant 1 is obligated to pay the above part of the leased land of this case within the scope of 400,000 won until March 1, 205, barring any special circumstance, and thus, Defendant 1 is obligated to pay the above rent of this case within the extent of rent.

B. As to the first preliminary claim against Defendant 1

As Defendant 1 did not pay rent for at least two years under the instant lease agreement, the Plaintiff asserted that the instant lease agreement was terminated on the ground that the service of the application for subdivision of the instant lawsuit filed on April 12, 2004 (the third application for subdivision of the lawsuit filed on August 20, 2004, asserting that the instant lease contract was terminated on the ground of the rent for at least two years from May 1, 2004 to May 1, 2004). The Plaintiff sought unjust enrichment equivalent to the delivery of each of the lands listed in [Attachment 1 to 8] and the rent from May 1, 204.

Therefore, according to the Plaintiff’s request for the above 4, 19, 22, and the Plaintiff’s 10th of April 12, 2004, the Plaintiff’s 10th of October 200 and 4th of October 200, it was found that the Plaintiff did not pay to the Plaintiff more than 2 months upon Defendant 1’s delivery of the copy of the application for alteration of the instant lease to Defendant 1’s legal representative. However, the Plaintiff’s 10th of April 200 and 4th of October 206, based on the following facts: (a) the Plaintiff’s 10th of October 206 and 4th of October 206, the Plaintiff’s 10th of October 206, and the Plaintiff’s 4th of October 206, the Plaintiff’s 10th of October 206, and the Plaintiff’s 10th of March 206.

C. As to the second preliminary claim against Defendant 1

The lease contract of this case with Defendant 1 was terminated due to the expiration of the lease term, and the Plaintiff did not intend to renew the lease with the above Defendant. Therefore, the amount equivalent to the market price for the new building of this case shall be paid, and the registration of ownership transfer, reputation and delivery of leased land shall be sought.

Therefore, if there is a building on the expiration of the period of land lease, the lessee can claim renewal of the contract, and if the lessor does not want renewal of the contract, the lessee can claim the purchase of the building at a reasonable price.

In the instant case, the Plaintiff and Defendant 1 entered into a land lease contract on the instant leased land for the purpose of owning the new building of this case. The lease contract of this case was concluded by Defendant 1 for five years from the date of receipt of the above leased object. Since Defendant 1 was ordered from Nonparty 2 to A around 2000, the lease contract of this case was terminated at the expiration of five years in 2005, and it is apparent that the Defendant made a statement on December 9, 2005, which included the Defendant’s expression of intent to exercise the right to purchase the new building of this case at the date of preparatory pleading on December 12, 2005, and thus, a similar legal relationship with the building of this case was established according to the Defendant’s expression of intent. In this case, the Defendant’s obligation to transfer the name of the instant building and the Plaintiff’s obligation to pay the purchase price, as well as the Plaintiff’s obligation to pay the purchase price.

Furthermore, according to the records of this case (the method of calculating the value of the subject matter of lawsuit against the newly constructed building of this case attached to the complaint), since the market price of the building of this case as of November 18, 2003 near the time when the right to purchase the building was exercised can be recognized as constituting 39,28,940, the sale price of the building of this case to be paid by the plaintiff to the defendant 1 shall be deemed the above money. Meanwhile, in full view of the purport of the argument in Gap evidence No. 1-2, in full view of the purport of the argument as to the whole, defendant 1 created a collateral security right of 65 million won against the defendant Daegu Bank as a collateral. However, since the market price of the newly constructed building of this case was not reflected in the value of the claim secured by the above collateral, the defendant 1 is obligated to transfer the ownership of the building of this case to the plaintiff without cancelling the registration of the establishment of the new building of this case.

4. Conclusion

Therefore, Defendant 1 is obligated to receive KRW 39,288,940 from the Plaintiff, and to take the procedure of ownership transfer registration for the reason of sale and purchase on December 12, 2005, after cancelling the registration of ownership transfer for the buildings listed in the separate sheet No. 9 as stated in the purport of the claim as to the buildings listed in the separate sheet No. 9, and order the above buildings. ② It delivers each land listed in the separate sheet No. 1 through No. 8, and ③ from March 1, 2005 to the completion date of the above list, it is also obligated to pay KRW 40,00 per month for the above name and title from March 1, 2005 to the above list. Thus, the plaintiff's primary claim against Defendant 1 and the first preliminary claim against Defendant Daegu Bank are without merit, and all of the plaintiff's primary claim against Defendant 1 and the second preliminary claim against Defendant 1 are dismissed. Accordingly, it is reasonable to accept each of the plaintiff's appeal against Defendant 1 and the first instance judgment against each of Daegu.

[Attachment List omitted]

Judges Lee Dong-woo (Presiding Judge)