207 Gaz. 1601 Maz.

Kim*

*****Gu* Dong****-****

Attorney Kim*

Maximum

**.*******

March 26, 2008

April 16, 2008

1. The defendant received KRW 6,235,00 from the plaintiff and simultaneously entered in the separate sheet in the plaintiff

Water. The term "water" in this section means

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by each person;

4. Paragraph 1 can be provisionally executed.

The defendant shall order the plaintiff to write down the building indicated in the attached list.

1. Basic facts

A. On December 15, 2006, the Plaintiff completed the registration of ownership transfer after being awarded a successful bid for No. 301 (attached Form No. 301, hereinafter referred to as "the instant condominium building") among the 301 (attached Form No. 1; hereinafter referred to as "the instant condominium building") in the Chuncheon District Court's Seocho Branch around 2006, around*** in the voluntary auction procedure of heading**** in the above time* in the above time****-**** in the above-mentioned condominium.

B. On March 14, 2003, the Defendant leased the instant building with a deposit of KRW 25,00,000, and the period of KRW 36 months from * the former owner of the instant building. At that time, the said building and the interior decoration construction for distinguishing the light community from 302 of the instant aggregate building, and thereafter, used the instant building as a danran bar until now.

C. Meanwhile, with respect to the building of this case, the registration of establishment of a mortgage company*****, debtor this** on June 14, 2002 was completed on the building of this case, but the aforementioned voluntary auction was conducted by the application of the bank* voluntary auction as the mortgagee of this case**.

[Ground of recognition] Evidence No. 1, Evidence No. 1, and Evidence No. 1, and the result of the on-site inspection by this court and the purport of the whole pleadings

2. Determination

A. Determination on the cause of the claim

According to the above facts, the defendant is obligated to order the plaintiff to order the building of this case, except in extenuating circumstances.

B. Judgment on the defendant's defense

In regard to this, the defendant, after leasing the building of this case from the former owner, is carrying out partitions construction and interior decoration construction in excess of about 100 million won, and its value is increased and existing. Accordingly, since the defendant acquired the right of retention for the building of this case, he cannot respond to the plaintiff's request for explanation until he receives the necessary expenses or beneficial expenses.

On the other hand, in order to claim for the necessary or beneficial expenses under Article 626 of the Civil Code against the plaintiff who is not a party to the lease agreement, the plaintiff should be able to succeed to the status of the previous lessor or oppose the plaintiff by a high-priced lease agreement, as seen above.

The defendant started to possess the building only after the establishment registration of the neighboring mortgage on the building of this case was completed. Since the plaintiff was awarded the above building by the execution of the right to collateral security, it cannot be deemed that the plaintiff succeeded to the status of the previous lessor, and the defendant cannot set up against the plaintiff with the previous lease relationship. Therefore, it is difficult to view that the plaintiff is liable to pay the necessary or beneficial expenses under Article 626 of the Civil Act.

However, although the previous lessee cannot oppose the successful bidder on the basis of the right of lease, he can oppose the successful bidder under the right of retention until the right to claim reimbursement of expenses incurred prior to the successful bidder and the expenses incurred under the right of retention are repaid. In this case, if the defendant acquired the right of retention before the voluntary auction procedure for the building in this case, the defendant has the right to retain the building in this case since he occupied the building in this case before the voluntary auction procedure, and the evidence as mentioned above and so forth * * the overall purport of arguments as a result of appraisal of the building in this case * in this case, the building in this case was not installed with a party wall as stipulated in Article 302 of the Condominium, which is next to the time when the defendant leased the building in this case. Accordingly, the fact that the building in this case was carried out as a partition required for the division of boundaries. Accordingly, the defendant has increased the objective value of the building in this case, and the existing value of the building in this case has increased, as seen above, the defendant has the right to receive the above 6,235,000 won.

Furthermore, although the defendant asserts that there exists a lien on the expenses incurred due to interior decoration works, it is difficult to deem that the above interior decoration works would increase the objective value of the building of this case due to the defendant's expenses incurred in running singran tavern business, and according to Article 4 of the lease contract (Evidence B No. 1) made at the time of the lease contract, the lessee may be reconstructed or altered with the approval of the lessor, but the lessee agreed to restore the real estate to its original state before the date of return. This is reasonable to view that the contract was made by the defendant to waive the claim for return of the part of the construction works executed by the defendant inside the building of this case after the lease. Therefore, the defendant's defense cannot be accepted.

C. Sub-decision

Therefore, the Defendant is obliged to receive KRW 6,235,00 from the Plaintiff, and at the same time, to surrender the instant water to the Plaintiff.

3. Conclusion

Thus, the plaintiff's claim of this case is justified within the scope of the above recognition, and the plaintiff's claim of this case is dismissed as it is without merit.

Maz. Maz.

Attached List

The indication of one building

**** Dong*********************** building.

5 floors of reinforced concrete slive roof

A square of 330.09m of 1st floor

The 2nd floor of 321m

305 square meters for three stories

The 4th 305m square meters

5 305 square meters for 5 stories

A ground floor of 240.83m of 240.83m

Indication of land which is the object of site ownership

**** Dong**** 2-* 212,** Si**** such*-** * Large 268 meters.

Indication of the building for exclusive use

The third floor is 301 square meters of reinforced concrete 116.88 square meters of the third floor

Indication of Site Ownership

Site ownership right of the kind of site ownership

40.12/480 of the ratio of site ownership