Incheon District Court 2014Gadan12781

Whether it is the most lessee

Not only did they acquire opposing power as stipulated in Article 3 (1) of the Housing Lease Protection Act, but also even if they have opposing power, they concluded a lease contract by abusing the Housing Lease Protection Act for the protection of small-sum tenants, so they do not fall under the small-sum lessee under the Housing Lease Protection Act.

The opposing power, etc. under Article 3 of the Housing Lease Protection Act and the protection of a specified amount among the deposit;

2014Na55482 Demurrer, etc. against distribution

KimA

1. BB companies, 2. The Republic of Korea 3. The JCC

Incheon District Court 2014Gadan12781 ( October 17, 2014)

August 20, 2015

September 17, 2015

1. The plaintiff's incidental appeal against the defendant JinCC shall be dismissed.

2. The part of the judgment of the first instance against the Defendants shall be revoked.

3. The plaintiff's primary claim against the defendant BB and Korea and the defendant JinCC are all dismissed.

4. The plaintiff shall bear the total cost of litigation between the plaintiff and the defendants.

1. Purport of the plaintiff's claim and ancillary appeal

(a) Claim: In the first instance, the Incheon District Court Decision 2013 Doz. 5228 (No. 5228), the auction of real estate;

Of the distribution schedule prepared by the same court on February 19, 2014, the amount of KRW 113,709,980 against Defendant BB companies is KRW 103,524,887, and the amount of KRW 9,814,907 against Defendant Korea is KRW 00,000, and the amount of dividends against the Plaintiff is KRW 20,000,000, respectively, and the Defendant JinCC pays 21,00,000 to each of the Codefendant D and the Plaintiff at the rate of KRW 20% per annum from July 12, 2014 to the date of full payment.

(b) Preliminary appeal: Defendant BB Company, and Korea:

If the claim is dismissed, the part against the plaintiff against the defendant JinCC in the judgment of the court of first instance shall be revoked, and the defendant JinCC shall pay the plaintiff 21 million won and the amount calculated at the rate of 20% per annum from July 12, 2014 to the date of full payment.

2. The purport of appeal by Defendant BB and Korea

The part concerning the above Defendants in paragraphs 2 and 3 is identical to the above Defendants.

1. Scope of the judgment of this court;

The plaintiff stated in the complaint of this case that the claim against the co-defendant of the first instance trial against Korea (hereinafter referred to as "Korea-China") was a preliminary claim, but the claim against the defendant B company (hereinafter referred to as "the defendant company"), the defendant's claim against the Republic of Korea and limited DD does not constitute "cases that are legally incompatible, which are legal requirements stipulated in Article 70 (1) of the Civil Procedure Act," and if the parties claim in the form of preliminary co-litigation but the claims by the co-litigants are not in a legally incompatible relationship between themselves, it is not a preliminary co-litigation as stipulated in Article 70 (1) of the Civil Procedure Act, but a relationship of ordinary co-litigation, etc. according to the original nature of the claim (see, e.g., Supreme Court Decision 2011Da76747, Sept. 27, 2012). Thus, the claim against the above defendants and limited DD became final and conclusive as they were in the judgment of the first instance court.

Meanwhile, a subjective and preliminary co-litigation is a form of litigation in which all co-litigants settle the dispute between each other in the same legal relationship without contradiction (Article 70(2) of the Civil Procedure Act). A judgment is not allowed to render a judgment or render an additional judgment on the remaining co-litigants only for some co-litigants. In a subjective and preliminary co-litigation, if one of the primary co-litigants or the conjunctive co-litigants files an appeal in a subjective and preliminary co-litigation, the confirmation of the claim portion as to other co-litigants is interrupted, and is transferred to the appellate court and subject to adjudication (see, e.g., Supreme Court Decision 2009Da4355, Feb. 24, 2011). In light of the foregoing legal doctrine, where the plaintiff's claim against the defendant company and the main claim against the defendant Republic of Korea is not accepted, the plaintiff's claim against the defendant JCC is brought to the purport that the claim against the defendant company and the main claim against the defendant in the Republic of Korea is not subject to a preliminary appeal against the defendants's conjunctive and conjunctive co-litigation.

2. Whether the plaintiff's incidental appeal is lawful

In the first instance court, the plaintiff won all of the claims against the defendant company and the defendant's Republic of Korea, and rejected the claims against the defendant JinCC. Since the defendant company and only the defendant Republic of Korea filed an appeal against the plaintiff among the above defendants, and the plaintiff did not file an appeal against the defendant JinCC and imposed the period of appeal, the plaintiff's incidental appeal against the defendant JinCC does not meet the requirement of "the plaintiff's incidental appeal against the defendant JinCC shall continue to be filed by the other party." The plaintiff's incidental appeal against the defendant company and the defendant's main claim against the defendant company and the defendant's Republic of Korea, which are subjective and preliminary co-litigation, naturally transferred to the appellate court pursuant to Article 70 (1) and (2) of the Civil Procedure Act, is subject to the judgment of this court. Thus, since the plaintiff's incidental appeal has no profit to file an incidental appeal, and the plaintiff's incidental appeal

3. Determination as to the Plaintiff’s claim against Defendant BB and Korea

(a) Basic facts;

1) On May 9, 2013, the Plaintiff entered into a lease agreement (hereinafter referred to as the “instant lease agreement”) with respect to Korea-based 00,000 and 00,000 apartment units owned by Korea-based Do (hereinafter referred to as Korea-based Do (hereinafter referred to as “instant apartment units”) as follows.

Lease Deposit 21,00,000 won (the contract deposit 2,000,000 won shall be paid and received at the time of the contract, and the balance 19,00,000 won shall be paid on June 9, 2013)

A lessor shall deliver the said real estate to the lessee by June 9, 2013 in a condition that it can be used for the purpose of the lease, and the term of lease shall be from the date of delivery to June 8, 2015.

2) On June 19, 2013, Incheon District Court Decision 2013Hu5228, as to the apartment of this case

On February 19, 2014, the registration of the decision to commence auction was completed, and in the above auction case, this court prepared a distribution schedule (hereinafter referred to as the "distribution schedule of this case") that distributes dividends of KRW 113,709,980 to the defendant company, the transferee of the Industrial Bank of Korea, who was the mortgagee of the apartment of this case, was the mortgagee of the apartment of this case, in the order of 123,707,307, and 182,420, and 2, in the order of 113,709,980, and 9,814,907.

3) The plaintiff appears on the same day on the date of distribution, and the defendant company and the defendant Republic of Korea (competent authority).

On February 24, 2014, the sum of each dividend amount of the Incheon Tax Office 20,000,000 won was raised, and the lawsuit of this case was filed on February 24, 2014.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 3-1, the purport of the whole pleadings

B. Parties’ assertion

1) The plaintiff's assertion

The Plaintiff entered into the instant lease agreement with Handi on May 9, 2013, and from May 20, 2013.

The genuine lessee who resided in the apartment of this case by January 27, 2014 is a small lessee under the Housing Lease Protection Act. Therefore, the Plaintiff is a small lessee under the Housing Lease Protection Act, and thus, the amount of dividends of 113,709,980 won against the Defendant company should be 103,524,887 won, the amount of dividends of 9,814,907 won against the Defendant Republic of Korea should be 0 won, and the amount of dividends to the Plaintiff should be 20,000 won.

2) Defendant Company and Defendant Korea’s assertion

The plaintiff is the most lessee, or the main purpose of the relevant lease agreement is the plaintiff.

It can not be protected as a small-sum lessee under the Housing Lease Protection Act in order to recover the money in the name of the deposit for lease without using and making profits from the Art.

C. Determination

1) Article 3(1) of the Housing Lease Protection Act provides that a lessee shall file a lease without registration.

Article 8 (1) of the same Act provides that when the delivery of a house and the completion of a resident registration are made, it shall be effective for a third person from the following day thereof, and in this case, the lessee shall be deemed to have registered as a resident at the time of the moving-in report, and Article 8 (1) of the same Act provides that the lessee shall have the right to be paid a specified amount of the deposit in preference to other secured creditors,

"The opposing power stipulated in Article 3 (1) of the Housing Lease Protection Act can be recognized not only in the case where the tenant occupies the house in question and also in the case where he occupies it indirectly by acting as an intermediary for others. However, since the tenant who does not actually reside in the house in question is not a person who has an address or residence in the house in question (Article 6 (1) of the Resident Registration Act), his resident registration cannot be deemed a legitimate resident registration under the Resident Registration Act. Therefore, the tenant who is an indirect occupant can not be deemed as a legitimate resident registration. Therefore, only if the direct occupant who actually resides in the house in question completes his resident registration based on the occupancy and intermediary relationship with the tenant, the tenant's opposing power can be legally acquired against the third party only if the direct occupant who actually resides in the house in question completes his own resident registration (see Supreme Court Decision 2000Da55645, Jan. 19, 201).

2) The above 0G 10 2, 4 through 16, 18 through 20, 10, 20G 10 and 30G 10, 207, 207, 10 and 30G 10, 207, 207, 207, 10,000, 10,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,000,00,00,00,00.

3) In full view of the following circumstances revealed by the above fact of recognition, the instant case

The plaintiff, a tenant under a lease agreement, did not actually reside in the apartment of this case, and Kim E-E, a direct occupant, did not obtain the opposing power under Article 3 (1) of the Housing Lease Protection Act, and even if the plaintiff had the opposing power after residing in the apartment of this case, the plaintiff entered into the lease agreement of this case in order to obtain unjust benefits by abusing the Housing Lease Protection Act which recognizes the preferential right to payment if the plaintiff satisfies the requisite for setting up against the plaintiff only before the commencement decision to protect the small tenant, and it is reasonable to deem that such plaintiff does not fall under the small tenant subject to protection under the Housing Lease Protection Act. Therefore, the plaintiff's above assertion is without merit.

① The Plaintiff is not limited to the nominal holder of the instant lease agreement, and in fact, KimE shall limit the name of the nominal holder.

There is no direct evidence that the plaintiff resided in the apartment of this case, which led the conclusion of the contract, and actually resided in the apartment of this case.

② The Plaintiff did not have a good link with the Gyeyang KimE, and from the date of concluding the instant lease contract.

In light of the fact that the Plaintiff was married with the GuG after about 3 months, and the Plaintiff’s workplace did not seem to have been the root of the instant apartment, there is no reason to live in the apartment of this case with the GuG having been pregnant at the time of entering into the instant lease agreement, with the GuG having been pregnant.

③ The Plaintiff and Kim E-E leased the instant apartment in order to make the instant apartment as the Plaintiff’s new marriage.

Although the GuG alleged that it was an apartment of this case, it continues to reside in the 00 Swiss loan from 2011 to 200 Switzerland without having been transferred to the apartment of this case.

④ The right to collateral security established on the instant apartment upon the conclusion of the instant lease agreement

Since the maximum amount exceeds the market price, in ordinary cases, the lease contract was not likely to be concluded, and even if it was revealed in the process of litigation, it is difficult to understand whether there was a reason to conclude the lease contract in the Plaintiff’s name even though the KimE owned 2 bonds around the apartment in the vicinity of the instant apartment.

⑤ The instant lease deposit is too low compared to the market price, and the Plaintiff entered into a lease agreement.

At the same time, the moving-in report was made and the fixed date was received, and the decision on commencement of auction on the apartment of this case was made about 40 days from the date of lease, and the lease deposit was all deposited immediately after the transfer to the account of the lessor, and the lease contract of this case shows a typical form of abnormal lease agreements concluded to obtain unjust benefits by abusing the Housing Lease Protection Act.

4. Determination as to the claim against Defendant JCC

A. The plaintiff's assertion

If the Plaintiff is unable to receive dividends in the instant auction procedure, Defendant JCC is liable to compensate the Plaintiff for damages incurred by mediating the instant lease agreement without fulfilling its fiduciary duty as a licensed real estate agent.

B. Determination

According to the above facts, if the plaintiff entered into the contract of this case with the main purpose of using and earning profit from the apartment of this case and actually resided in the apartment of this case, most of the lease deposit of this case could have been distributed at the auction procedure of this case as a small lessee subject to protection under Article 8 of the Housing Lease Protection Act. Therefore, it is difficult to recognize the causal relationship between the mediation act of the defendant JinCC and the damage suffered by the plaintiff, and there is no evidence to acknowledge the plaintiff's assertion. Therefore,

5. Conclusion

If so, the incidental appeal against Defendant JinCC is unlawful and dismissed, and the Defendant Company:

The main claim against Defendant JinCC and its ancillary claim against Defendant JinCC are all dismissed for each reason. Since the part of the judgment of the court of first instance different from this conclusion is unfair, the above part as to the Defendants is revoked, and the main claim against Defendant Company and Defendant JinCC and its ancillary claim against Defendant JinCC are all dismissed. It is so decided as per Disposition.