The case holding that the buyer and lessee of the building constitute a third party and a person who has a legitimate interest in repaying obligations with respect to payment of the construction proceeds of the building

In the event that a person who newly built a building sells the building and, at the same time, decided to lease the building to a buyer prior to the registration of ownership transfer, and the contractor who constructed the building prevented the buyer and lessee from taking occupancy on the ground that the contractor who constructed the building was not paid part of the construction cost, and the buyer and lessee paid part of the purchase price to the seller as a payment for construction cost, the buyer and lessee of the building are deemed to have a legal interest and legitimate interest in repaying the seller’s right to retention, etc. on the building, which is an obstacle to the realization of the right, in order to extinguish the seller’s right of retention, etc. on the building that is an obstacle to the realization of the right, the said repayment is effective

Articles 469 and 481 of the Civil Act

Supreme Court Decision 90Da1774, 17781 decided Jul. 12, 1991 (Gong1991, 2144) decided Oct. 11, 1991 (Gong1991, 2714)

Plaintiff (Counterclaim Defendant)

Defendant (Counterclaim Plaintiff)

Seoul Civil District Court Decision 92Na14105, 14112 decided January 12, 1993 (Counterclaim)

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

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below rejected the Plaintiff’s claim for the above 0th of June 22, 1989 against the Plaintiff (Counterclaim Defendant, hereinafter the Plaintiff) for the payment of KRW 2,00,000 on the day of purchase of the part of the land owned by the Plaintiff (hereinafter the instant real estate) and KRW 28,000 on the same 3rd of June 2, 198, and for the payment of KRW 00 to the part of intermediate payment or remainder on the premise that the above 10th of June 22, 1989 were 0 to the Plaintiff’s intermediate payment for the above 0th of July 30, 1989 to the effect that the above 0th of June 30, 200 to the Plaintiff’s intermediate payment for the above 0th of July 30, 200 to the extent that the contract would have been occupied by the Plaintiff before and after the completion of construction work, the Plaintiff would have paid the remainder payment to the Plaintiff’s first 30000 days after the payment.

2. However, if the facts are as above, in order for the buyer of the real estate in this case to extinguish his right of retention, etc. on the above non-party 3's building which is an obstacle to the realization of the right as the lessee, the defendant is deemed to be a third party and a person who has a legitimate interest to repay the plaintiff's construction deposit obligation instead of the plaintiff's compensation liability. Thus, the defendant's repayment to the non-party 3 is effective against the plaintiff's will within the scope of the plaintiff's actual construction deposit obligation, and the defendant shall obtain the same amount of reimbursement against the plaintiff. Furthermore, according to the non-al. Eul's attached document No. 5 which is not clearly rejected by the court below, the plaintiff's payment by subrogation at least KRW 10,00,00 is deemed to have accepted, and even according to the evidence No. 1, 2, and 3 cited by the court below, the defendant appears to have expressed his intention to perform it by confirming the plaintiff's actual construction deposit obligation and the remaining obligation it bears, and it is difficult to recognize the defendant's intention to refuse performance.

3. Therefore, the court below's determination that the above contract was cancelled for the reasons stated in its holding without examining the amount of the actual construction deposit claim of the above non-party 3 and denying the validity of the defendant's subrogation and without confirming the defendant's obligation is erroneous in the misunderstanding of legal principles as to the requirements for the cancellation of the contract by subrogation and the cancellation of the contract, or in the misunderstanding of the rules

Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the judgment of the court below is reversed and remanded. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)