2015Da217324 De-registration of chonsegwon

A Stock Company

Law Firm Non-cases (Attorney Park Jae-ok, Counsel for the defendant-appellant)

F. F. Corporation

Law Firm Lee Han-ok (Attorney Kim Jong-ok, Counsel for the defendant-appellant)

Suwon District Court Decision 2014Na28852 Decided April 16, 2015

March 15, 2018

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The grounds of appeal are examined.

1. Review of the reasoning of the first instance judgment as cited by the lower court and the record reveals the following facts.

A. On October 29, 2009, the Plaintiff leased (hereinafter referred to as “the instant lease agreement”) the J building K (hereinafter referred to as “the instant real estate”) of the lower court’s Joint Defendant B (hereinafter referred to as “B”) with the deposit amount of KRW 100 million, the lease period from January 1, 2010 to December 31, 2018, and the monthly rent shall be 6% of the net sales (However, from January 1, 201 to December 31, 2013, the maximum rent of KRW 14 million shall be guaranteed and the rent of KRW 18 million shall not exceed KRW 18 million shall not exceed KRW 200,000,000,000,000 for the purpose of securing the right to lease under the instant lease agreement (hereinafter referred to as “right to lease”) and received the registration of the establishment of the chonsegwon on April 28, 2012 under the name of the district court (hereinafter referred to as “right to lease: 2008.4.

B. On April 27, 2012, the Plaintiff and B agreed to terminate the instant lease agreement as of April 30, 2012 (hereinafter “instant termination agreement”). On June 15, 2012, the Plaintiff and B transferred the instant real estate to L who entered into a new lease agreement with the Plaintiff with respect to the instant real estate on the following grounds: (a) the sum of the monthly rent and management expenses that were paid to the Plaintiff by May 10, 2012 was KRW 152,374,840 in total; (b) on August 10, 2012, the Plaintiff agreed to offset B’s claim for refund of the lease deposit against the said overdue rent, etc. (hereinafter “instant offset agreement”).

D. Meanwhile, the co-defendant C of the first instance trial, on July 19, 2012, registered provisional seizure against the right to lease on a deposit basis; registered provisional seizure against the right to lease on a deposit basis on December 13, 2012; registered provisional seizure against the right to lease on a deposit basis on the deposit basis on the deposit basis; and registered provisional seizure against the right to lease on a deposit basis on February 13, 2013; the Industrial Bank of Korea of the first instance completed provisional seizure against the right to lease on a deposit basis on the deposit basis on February 19, 2013; and the Defendant completed the registration of provisional seizure against the right to lease on a deposit basis on the deposit basis on the deposit basis of the instant case. G Co. obtained the instant right

2. According to the reasoning of the judgment below, the court below held that, based on the above facts, B is obligated to cancel the registration of creation of the instant chonsegwon due to the termination of the agreement and extinguishment of the right to lease on a deposit basis, but the Defendant cannot be deemed to bear the obligation under the substantive law to accept the cancellation of the registration of the right to lease on a deposit basis

A. After the termination of the contract, a third party who had been aware of the termination of the contract cannot assert the termination of the contract for a legal relationship that is not compatible with the contracting party before the registration of restitution, etc. is made. The defendant seized the right to lease on a deposit basis of this case and acquired another new right that can obtain satisfaction of the claim with the payment for the seizure of the right to lease on a deposit basis of this case and the registration of the right to lease on a deposit basis. Since there is no evidence that the defendant knew of the termination of the contract of this case, the plaintiff cannot oppose the defendant due to the termination

B. In addition, as in the instant case, if the registration of the establishment of a right to lease on a deposit basis was completed in the name of a lessee pursuant to an agreement between the lessee and the lessor for the purpose of securing the right to lease on the deposit basis, a third party who seized the right to lease on a deposit basis without knowing such circumstance may not claim a right to overdue rent, etc. arising from a lease agreement that is inconsistent with the contract to establish a right to lease on a deposit basis. Therefore, there is no evidence to deem that the Defendant knew that the right to lease on a deposit in this case was for the purpose of securing the right to lease on a deposit basis, and the Plaintiff

3. However, we cannot agree with the judgment of the court below on the plaintiff's claim against the defendant for the following reasons.

A. The right to lease on a deposit basis under the Civil Act, which has completed the registration of establishment of a right to lease on a deposit basis, concurrently takes the characteristics of the right to lease on a deposit basis as well as the characteristics of the right to lease on a deposit basis. If the right to lease on a deposit basis terminates due to the expiration of the duration or termination of the agreement, etc., the right to lease on a deposit basis is extinguished and the right to lease on a deposit basis remains effective until the return of the right to lease on a deposit basis within the scope of the right to lease on a deposit basis (see, e.g., Supreme Court Decisions 2003Da35659, Mar. 25, 2005; 2014Da10694, Nov. 17, 2015). Moreover, even if the contract for lease on a deposit basis is terminated, the effect of the termination is not retroactive to the person having a right to lease on a deposit basis, and thus, can not be seen as immediately recovering the ownership of the right to lease on a deposit.

Examining the aforementioned facts in light of the legal principles as seen earlier, the registration of the establishment of chonsegwon in this case is deemed to have been completed for the purpose of securing the claim for the return of lease deposit under the instant lease agreement, and as long as the claim for the return of lease deposit against the Plaintiff in this case remains at the time of the conclusion of the agreement, the agreement in this case alone cannot be deemed to have been extinguished as a matter of course or to have immediately recovered the full ownership without any burden on the Plaintiff. Therefore, in this case, it cannot be said that the application of the proviso of Article 548(1) of the Civil Act, which is the

B. Since a claim for the return of lease on a deposit basis may be deemed to have already occurred at the time of the establishment of the right to lease on a deposit basis, if the settlor of chonsegwon already has a claim against the person having chonsegwon against the person having chonsegwon at the time of seizure of the right to lease on a deposit basis, and if it is possible to recognize a reasonable expectation interest to the settlor of chonsegwon, such as at the same time as the repayment period of the claim for the return of lease on a deposit basis that will occur in the future or earlier, barring any special circumstance, the settlor of chonsegwon may set off the opposite claim against the person having chonsegwon by offsetting it against the claim for the return of lease on a deposit (see, e.g., Supreme Court Decision 2013Da91672, Oct. 27, 2014). Meanwhile, if the contract between the parties to the contract to lease on a deposit basis is agreed upon, the registration of the establishment of the right to lease on a deposit basis shall be deemed to have the effect of securing the claim for the return of lease on a deposit basis.

Examining the above facts in light of the legal principles as seen earlier, since the agreement between the Plaintiff and B is valid, it is reasonable to view that the Plaintiff may oppose the Defendant who seized the instant chonsegwon only after the agreement on the offset, and on the other hand, since the right to lease on a deposit basis expires only after the agreement on the offset of this case and the right to lease on a deposit basis has expired, this does not have any effect even if the Defendant attached the instant chonsegwon after the agreement on the offset of this case. Supreme Court Decision 2006Da29372, 29389 Decided March 13, 2003 cited by the lower court is the case where the effect of the declaration of intention made by the settlor of chonsegwon after the establishment of the right to lease on a deposit basis was at issue, and cannot be invoked in the instant case where the attachment of the instant chonsegwon was made after the agreement on the offset

C. Therefore, the Defendant ought to be deemed to bear the obligation under the substantive law to accept the cancellation of the registration of chonsegwon in this case. Nevertheless, on the premise that the proviso of Article 548(1) of the Civil Act can be applied in this case, the lower court deemed that the Defendant constituted a third party as referred to in the proviso of Article 548(1) of the Civil Act, and that the Plaintiff cannot oppose the Defendant, and determined that the Defendant cannot be deemed to assume the obligation under the substantive law to accept the cancellation of the registration of chonsegwon in this case. In so determining, the lower court erred by misapprehending the legal doctrine on the validity of the right to lease on a deposit basis and the validity of the offset agreement made between the settlor of chonsegwon and the person having chonsegwon,

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim In-bok

Justices Park Sang-ok

Chief Justice Lee Dong-won

Justices Park Il-san