The probative value of the lease investigation report prepared on the basis of only the statement of the wife of the person claiming to be the lessee in the auction case

In the auction case, the lease investigation report prepared only on the basis of the above statement without examining and confirming the truth of the statement of the claimant as the lessee while conducting the lease investigation on the auction real estate is very valuable as evidence to recognize the lease contract.

Articles 187 and 618 subparag. 3 of the Civil Procedure Act

Attorney Park Jae-jin et al., Counsel for the defendant-appellant

Defendant Kim Jae-chul, Counsel for the defendant-appellant

Busan District Court Decision 91Na3786 delivered on April 10, 1992

The part of the judgment below against the plaintiff is reversed, and that part of the case is remanded to Busan District Court Panel Division.

The Plaintiff’s attorney’s ground of appeal is examined.

1. The court below, citing the explanation of the reasoning of the judgment of the court of first instance, acknowledged that the defendant completed the move-in report on the apartment of this case on September 3, 1986, and concluded a lease contract with the non-party 1, the owner of the above apartment, with respect to the apartment of this case and paid the lease deposit amount of KRW 45,00,00,00 with respect to the above apartment of this case on the 5th of the same month, and occupied it up to the present day after moving-in without fixing the rent and the lease deposit. At the auction procedure for the apartment of this case, the defendant was deemed to possess the apartment of this case on September 3, 1986 at the time of the investigation of the lease deposit of this case, and notified the contents thereof on the auction date, and determined that the defendant, the lessee of the apartment of this case, who acquired the ownership of the above apartment of this case, has the right to claim the above lease relationship until he received the return of the lease deposit.

2. However, according to the records, the evidence employed by the court below in recognizing the above lease agreement between the defendant and the non-party 1 is written evidence Nos. 2, Eul evidence Nos. 3-5,6,8,14, and non-party 1's testimony, and the witness evidence Nos. 1 which acknowledged the authenticity by the non-party 1's testimony, and it is difficult to admit the admissibility of evidence as follows.

First, the evidence No. 2 is that the defendant completed the move-in report for the apartment of this case on September 3, 1986 as the resident registration record card for each household, and only can it be evidence to recognize the fact that the defendant had the move-in report for the apartment of this case.

The following evidence No. 3-5 is the lease investigation report in the auction case of the apartment of this case. According to the fact that the defendant leased the apartment of this case to 45,00,000 won on September 3, 1986. However, according to the above report, it appears that the office's officer who prepared the above report was investigated and reported as above on the ground of the non-party 2's statement, which is the defendant's wife, and there is no trace of the above office's investigation and confirmation as to the facts of the above non-party 2's statement. Thus, the value of Eul evidence No. 3-5 merely stating the defendant's unilateral statement as it is is weak as evidence to acknowledge the above lease contract. In addition, the evidence No. 3-6, and No. 8 of this case is the content that the auction court publicly announced the contents No. 3-5 of evidence No. 3-5.

끝으로 을 제3호증의 14, 을 제1호증의 각 기재와 증인 소외 1의 1심증언에 관하여 살피건대, 위 소외 1은 1심증언에서 위 아파트의 소유자라면서도 위 아파트를 누구로부터 얼마에 샀는지조차 기억하지 못하고 있는 점, 동인은 피고의 장모인 점과 아래에서 설시하는 위 아파트의 시가 및 감정인의 감정서기재내용에 비추어 보면 위 소외 1의 수사기관에서의 진술을 담은 을 제3호증의 14의 기재나 위 소외 1의 1심증언은 그 신빙성이 극히 의심스럽다고 할 것이고, 이에 따라 동인과 피고 사이의 임대차계약서인 을 제1호증의 진정성립도 선뜻 인정하기 어렵다고 하지 않을 수 없다.

Meanwhile, examining the results of appraisal of the market price and rent for the appraiser 1 of the court below's decision that the court below did not interfere with the fact-finding of the court below, in light of the records, the contents of the apartment of this case are about 29 million won at the market price as of September 5, 1986, and the reasonable lease deposit for the apartment of this case is about 19 million won and the apartment of this case, which is similar to the above apartment, was leased at KRW 18,00,000 around September 19, 196. In light of these facts, it is extremely unusual that the defendant paid rent for the apartment of this case from the above non-party 1, who is the mother, about 1.5 times the market price and the rent for the apartment of this case, which is about 2 times or more times the rent deposit, and thus, the result of appraisal cannot be deemed as a evidence that interferes with the recognition of the fact of the lease contract as alleged by the defendant.

In addition, when the court below did not dismiss Gap evidence No. 1-5, since the appraiser of ○○ Appraisal Board who appraised the price of the above apartment at the auction procedure for the above apartment is confirmed to have no lease relationship with respect to the above apartment at the time of August 17, 1989, it is confirmed that there was no lease relationship with respect to the above apartment at the time of August 17, 1989, this is also a evidence that interferes with the approval of the court below

As a result, the court below committed the violation of the rules of evidence against the rules of evidence, thereby adversely affecting the conclusion of the judgment, and there is a reason to point this out.

3. Therefore, the part of the judgment below against the plaintiff is reversed and remanded. It is so decided as per Disposition by the assent of all participating Justices on the bench.