Plaintiff

Defendant 1

Defendant 2

May 28, 2015 (Defendant 2), July 23, 2015 (Defendant 1)

Jeonju District Court Decision 2013Ra2239 Decided June 11, 2014

1. Of the judgment of the court of first instance, the part against Defendant 2 ordering payment of KRW 12,50,000 to the Plaintiff as well as KRW 5% per annum from February 19, 2014 to September 3, 2015, and KRW 20% per annum from the next day to the date of full payment, shall be revoked, and the Plaintiff’s claim corresponding to the revoked part shall be dismissed.

2. The plaintiff's appeal against the defendant 1 and the remaining appeals against the defendant 2 are all dismissed.

3. The costs of appeal incurred between the Plaintiff and Defendant 1 are assessed against the Plaintiff, 3/4 of the total costs of litigation incurred between the Plaintiff and Defendant 2, and 1/4 of the Plaintiff, respectively.

1. Purport of claim

The Defendants shall pay to the Plaintiff 50,000,000 won jointly and severally with the Co-Defendant 3 and Nonparty 4 of the first instance trial, and the amount calculated by the rate of 20% per annum from the day following the delivery date of the copy of the claim of this case and the amendment of the cause of the claim of this case to the day of complete payment.

2. Purport of appeal

The part against Defendant 1 in the judgment of the court of first instance is modified as follows. Defendant 1 shall pay to Co-Defendant 3, Nonparty 4, and Defendant 2, each of whom is KRW 50,000,000, and the amount calculated by the rate of 20% per annum from the day following the day of service of a copy of the request for modification of the purport of this case and the cause of the claim to the day of complete payment.

Defendant 2: The part against Defendant 2 among the judgment of the first instance court is revoked, and the Plaintiff’s claim against Defendant 2 is dismissed.

1. Facts of recognition;

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 Gap evidence of subparagraphs 1 through 3 (including the branch numbers of those with the serial numbers):

A. On August 9, 199, the Plaintiff entered into a lease agreement with ○○○○ (hereinafter “○○○”) on setting a deposit amount of KRW 50,000,000 (no monthly rent) and 24 months during the lease term of the lease term (a special agreement clause stipulating that the Plaintiff shall automatically extend the lease of 121.97 square meters (hereinafter “instant leased building”) among the buildings listed in the separate sheet (hereinafter “instant building”), which is owned by ○○○○○○○○○○○○, as indicated in the separate sheet (hereinafter “instant building”).

B. At the time of the conclusion of the lease agreement stated in the above paragraph (a) above, the Plaintiff: (a) co-defendant 4 of the first instance court, who was the representative director of ○○○○○ at the time of the conclusion of the lease agreement, resigned from office as the representative director; (b) Defendant 2, who was appointed as the representative director, completed the above resignation and the registration of his office on October 21, 2002; and (c) completed the lease agreement with ○○○ on the same day, with the same content as the lease agreement on August 9, 199, except as provided for in 3

C. On November 21, 1997, the deceased non-party 1, as the defendant's wife, completed the registration of transfer of ownership on the building of this case on November 17, 1997, upon which the registration of transfer of ownership was completed on October 23, 200. As the wife of the deceased non-party 1, the deceased non-party 2, the mother of the defendants, completed the registration of transfer of ownership on February 10, 206 with the principal registration on the building of this case on the basis of the above provisional registration.

D. On December 10, 2006, the Plaintiff entered into a lease agreement on the instant leased building (hereinafter “instant lease agreement”) with the deceased Nonparty 2, and the content thereof is the same as the lease agreement dated August 9, 199.

E. The deceased non-party 2 died on February 14, 2009. The Defendants, the heir, the co-defendant 3, and non-party 4 inherited the instant building at the ratio of 1/4, respectively.

F. Nonparty 5 (the foregoing collateral security was acquired by the Japan Bank on August 29, 197, but transferred to Nonparty 5 via the Stock Resolution Financial Corporation, LSFD SFD SPcom) who was the first priority collateral security on the instant building, filed an application for the registration of ownership transfer on the ground of inheritance in subrogation of the Defendants and the co-defendant 3 and Nonparty 4 in the first instance trial for the execution of the right to collateral security, and on March 31, 2010, the registration of ownership transfer was completed in the names of the Defendants and the co-defendant 3 and Nonparty 4, respectively, in the names of the co-defendant 4 and the co-defendant 4 of the first instance trial.

G. Nonparty 5’s exercise of the right to collateral security, led to the voluntary auction procedure for the instant building, and on January 13, 201, the limited liability company purchased and acquired the instant building.

2. Determination:

A. According to the above facts, since the Plaintiff’s right to lease of the leased building of this case was extinguished by sale by auction conducted at the request of the senior mortgagee, the Defendants succeeded to the lessor status of the deceased non-party 2, the co-defendant 3, and the non-party 4 are liable to return the lease deposit for the leased building of this case to the Plaintiff according to their respective inheritance shares (the Plaintiff asserted that the Defendants and the co-defendant 3 and the non-party 4 were an indivisible obligation, but if the content of the payment was jointly inherited as the monetary obligation, such obligation is divided and reverted to the co-inheritors at the time of the commencement of inheritance, and it cannot be viewed as the obligation to return the lease deposit, and from the beginning, it is difficult to view that the obligation to return the lease deposit was indivisible by the persons who became a joint lessor at their own will, and it is the same as the obligation to the sole lessor’s co-inheritors as the obligation to return the lease deposit.)

B. Determination as to the defendants' assertion

The Defendants asserted that the establishment of each of the above lease agreements on the leased buildings of this case was denied, and therefore, the Defendants did not assert and prove specific arguments as to whether they were authentic or stolen of each of the seals affixed on the lease agreement of this case between ○○○○ and Defendant 1, Defendant 4, ○○○○, and 2, who affixed the seal on the lease agreement of this case, even though they asserted as above, and Defendant 1, Defendant 4, and Defendant 2 did not accept each of the seals affixed on the lease agreement of this case from 00,000 won to 20,000 won on August 9, 199, 200, the evidence as mentioned above, and the purport of the argument as to the above 4,000,000 won, which was 50,000 won, from 20,000 won, to 15,000,000 won, and the Plaintiff paid the above ownership transfer registration of this case to 2,000,000 won.

C. Determination on Defendant 1’s assertion

Defendant 1 asserted that since Defendant 1 was judged to accept the inheritance-limited approval report against the deceased Nonparty 2, Defendant 1 is merely obligated to refund the lease deposit within the scope of the property inherited from the deceased Nonparty 2.

As to this, the Plaintiff asserts that, since Defendant 1 did not intentionally enter the instant building, which is inherited property, in the inventory at the time of filing a report on the limited-liability inheritance approval, it shall be deemed that the simple approval was made pursuant to Article 1026 subparag. 3 of the Civil Act. ② Defendant 1’s report on the limited-liability inheritance was made three months after the date on which the inheritance commences, and Defendant 1’s report on the limited-liability inheritance did not meet the requirements under Article 1019(3) of the

First, in accordance with Article 1026 subparag. 3 of the Civil Act, whether it can be recognized as a statutory simple approval pursuant to Article 1026 subparag. 3 of the Civil Act, and Article 1030(2) of the Civil Act provides that in the case of a qualified acceptance pursuant to Article 1019(3), if there is any property already disposed of among the inherited property, the list and value thereof shall be submitted along with the list. According to the evidence No. 1, Defendant 1 reported the inheritance approval to the deceased non-party 2 on September 5, 201, and reported the inheritance approval to the deceased non-party 2 on September 26, 201 (hereinafter “the instant report on qualified acceptance”). In the list of inherited property attached at the time of the said report, the fact that there is no obligation to return the lease deposit to the plaintiff, which is an active property, is recognized.

However, Article 1026 subparag. 3 of the Civil Code on the Absolute Acceptance of Legal Absolute Acceptance refers to the time when the qualified acceptance is not entered in the inventory with the intent to conceal the inherited property in the qualified acceptance and not enter the inherited property in the inventory with the intent to prejudice the inheritance obligee. The intentional burden of proof lies on the party asserting it (see, e.g., Supreme Court Decision 2009Da84936, Apr. 29, 2010). As seen earlier, since the voluntary auction procedure was commenced on January 13, 201, and the building of this case was sold to another place on January 13, 201, it is deemed that the building of this case was already sold to a third party and goes beyond the ownership of the third party at the time of the report of the qualified acceptance. In the auction procedure, the obligation and obligation of the building of this case also became all resolved, and there is no evidence to acknowledge the intention of Defendant 1 otherwise.

Next, as seen earlier, the instant report on qualified acceptance should be filed on February 14, 2009 where Defendant 1 died from February 14, 2009 to September 5, 201 with respect to whether the period for which the instant report on qualified acceptance was inappropriate due to the lapse of the said period, and the fact that Defendant 1 filed the instant report on qualified acceptance was made on September 5, 201. Therefore, in order for the instant report to be lawful, the instant report on qualified acceptance constitutes “a case where a successor did not know that his/her inherited obligation exceeds his/her inherited property without gross negligence within three months from the date on which he/she became aware of the commencement of inheritance without any knowledge

According to the above evidence and evidence No. 5, it is recognized that Defendant 1’s signature and seal exists on the lease contract prepared by the Plaintiff at the time of entering into the first lease contract with ○○○○ on the instant building, and that Defendant 1 served the original copy of the decision on voluntary auction of the instant building on April 26, 2010.

However, according to the result of the reply to the order to submit financial data to the director of the tax office at the court at the second instance court, the director of the tax office at the remaining tax office may, on August 9, 2011, send a transfer income tax notice to Defendant 1, a joint and several taxpayer of the transfer income tax to the deceased non-party 2, and may recognize that the above notice has reached Defendant 1. The above evidence and evidence set forth in the above 2, 5, and 8, and the court at the first instance court, found that Defendant 1 did not know of the whole arguments, i.e., it was the representative director of ○○○○○ in the above contract from 197, and it appears that Defendant 1 did not know that there was a considerable amount of liability to the non-party 2, such as the transfer income tax on the non-party 1's transfer income tax on the non-party 2's transfer property at the time of the commencement of the inheritance contract, and it was difficult to conclude that Defendant 1 and the non-party 2 were involved in the inheritance trust agreement.

Therefore, the instant report on the qualified acceptance on September 5, 201, which was made on September 5, 201 from the time Defendant 1 became aware that the inherited debt exceeds inherited property, is legitimate. As such, Defendant 1 is obligated to pay lease deposit and damages for delay to the Plaintiff within the scope of inherited property from the deceased Nonparty 2.

D. Determination as to Defendant 2’s assertion

① The Defendant did not pay the monthly rent for the leased portion of the instant leased building, as well as the instant leased building. ② The Plaintiff paid the lease deposit for the instant leased building to the deceased Nonparty 1, and Defendant 2 gave up inheritance to the deceased Nonparty 1, and thus, did not bear the obligation to return the lease deposit. ③ Since the Plaintiff concluded a lease contract after the establishment of the first right to collateral security with respect to the instant leased building, the right to lease was extinguished by the enforcement of the said first right to collateral security and the distribution procedure was terminated, the Plaintiff asserted that the lease deposit cannot be claimed after the completion of the distribution procedure.

However, there is no evidence to support the fact that the plaintiff used the underground floor of the building of this case free of charge, and even if the plaintiff paid the lease deposit of this case to the deceased non-party 1, the parties to the lease contract of this case are also ○○○○○, the parties liable to pay the obligation to return the lease deposit as the parties to the lease contract of this case. Since the deceased non-party 2, who succeeded to the ownership of the building of this case, succeeds to the obligation to return the lease deposit by concluding a lease contract with the plaintiff again with the plaintiff, unless the defendant 2 did not waive his succession against the deceased non-party 2, the above obligation to return the lease deposit shall be succeeded to the obligation to return the lease deposit. Even if the plaintiff did not receive the distribution in the above auction and distribution procedure of the building of this case and the distribution procedure of the building of this case was completed, the plaintiff's claim to return the lease deposit of this case shall not be extinguished

E. Sub-committee

Therefore, Defendant 2’s 12,50,000 won (=50,000 won x 1/4 x 1/4) as to the Plaintiff and its claim’s claim’s claim’s claim’s and claim’s modification claim’s scope from February 19, 2014 to September 3, 2015, 5% per annum under the Civil Act until September 3, 2015, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment; ② Defendant 1 is liable to pay 12,50,000 won within the scope of the property inherited from the deceased Nonparty 2 (i.e., 50,000,000 x 1/4) as to delay damages from the date of delivery of the claim’s claim’s and the cause of claim’s modification, and each of the above Defendant’s claim’s claim’s existence and damages from the 25th day of February 2015, 2014.

3. Conclusion

Therefore, the plaintiff's claim against the defendants shall be accepted within the scope of each above recognition, and the remaining claims against the defendants shall be dismissed as they are without merit. Since the judgment of the court of first instance is unfair with some different conclusions, with respect to the defendant 2, part of the appeal by the above defendant is accepted, and part of the above defendant's order to pay the defendant 2 in excess of the above recognition amount shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed. The remaining appeal by the defendant 2 is dismissed as without merit, and the judgment of the court of first instance shall not be modified in favor of the defendant 1 and disadvantageous to the plaintiff. Thus, only the plaintiff's appeal against the defendant 1 shall be dismissed. It is so decided as per

(attached Form omitted)

Judges Lee Jong-tae (Presiding Judge)