Plaintiff Co., Ltd. (Law Firm Han-ro, Attorneys Kim Young-ok, Counsel for plaintiff-appellant)

Defendant (Attorney Yu Hong-han et al., Counsel for the defendant-appellant)

November 9, 2005

Incheon District Court Decision 2003Gadan96547 Delivered on December 24, 2004

1. The defendant's appeal is dismissed.

2. The costs of appeal are assessed against the defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 90,000,000 won with 20% interest per annum from April 12, 2004 to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

In full view of the purport of the whole pleadings in the statements in Gap evidence 1-1, 2, 2, 3-1, 2, 4, 6-1, 6-2, 6-2, and Eul evidence 10-1, the following facts may be acknowledged:

A. The Incheon Metropolitan City (detailed address omitted) was originally owned by Nonparty 1. Around April 1, 1999, Nonparty 2 entered into a lease agreement (Evidence No. 6) to lease 90,000,000 square meters of the underground floor of the instant building (hereinafter “the instant building”) from April 12, 199 to April 11, 2004 without monthly rent for KRW 20,000,000 from April 12, 1999 to April 11, 2004, and paid KRW 70,000,000 on the same day to Nonparty 1.

B. After that, around April 14, 1999, Nonparty 2 concluded a lease on a deposit basis with Nonparty 1 again on April 1, 199 the same terms and conditions as the lease on a deposit basis (Evidence 3-1) and around April 15, 1999 the Incheon District Court received No. 47120 of the receipt of the registration office of North Incheon District Court on April 14, 1999 as the contract for lease on a deposit basis. Nonparty 2 signed a lease on a deposit basis (Article 90,000,000, the scope of the instant building, the duration of the instant building, the return period until April 11, 2004, and the registration of the establishment of a lease on a deposit basis by Nonparty 2 of the lease on a deposit basis.

C. Around April 16, 1999, Nonparty 2 entered into a contract for change of chonsegwon (Evidence 3-2) with the Plaintiff (hereinafter “the Plaintiff”) to obtain a loan of KRW 85,000,000 at interest rate of KRW 16% per annum (hereinafter “the instant loan contract”). Around April 15, 1999, Nonparty 2 entered into a contract for change of chonsegwon (Evidence 3-2) with the Plaintiff to obtain a right to lease on a deposit basis with the object of the instant building part. On April 21, 1999, Nonparty 2 made a supplementary registration of the right to lease on a deposit basis with the Plaintiff as to the said right to lease on a deposit basis.

D. The Defendant, as the wife of Nonparty 1, has been practically managing the instant building by leasing it to many tenants including Nonparty 2. On December 3, 2003, after being divorced from the lower rank, the Defendant completed the registration of ownership transfer on the ground of donation on November 29, 2003. Meanwhile, even after the transfer of the right to lease on the instant building to the Plaintiff, Nonparty 2 was killed on September 2002 while operating a singing room, etc. on the instant building, and thereafter his bereaved family had ordered the Defendant to order the instant building portion.

E. Under the instant loan agreement, Nonparty 2’s obligation to the Plaintiff is KRW 85,00,000 of the loaned principal as of December 11, 2003, interest KRW 23,727,793, interest interest interest KRW 6,950,591 in total, and interest interest KRW 115,678,384 in total.

[Defendant defense that the part of the non-party 1's signature and seal of the evidence Nos. 3-1 (contract of chonsegwon) and 6 (contract of lease on a deposit basis) was forged. According to the written evidence Nos. 3-1 and 6-2 and the written evidence Nos. 3-1 and 6-2, the non-party 1's signature on each of the above documents is not written evidence No. 1, but written evidence Nos. 6, 11-1 and 2. However, according to the purport of the whole oral argument, according to the above documents Nos. 6, 11-1 and 2, the non-party 1's signature and seal affixed to the above document No. 3-1 (contract of lease on a deposit basis) was affixed to the non-party 1's signature and seal affixed to the above application for the registration of lease on a deposit basis, the non-party 1's signature and seal affixed to the non-party 1's signature and seal affixed to the non-party 1's signature.

2. The assertion and judgment

A. The parties' assertion

(1) The Plaintiff asserts that the Defendant, who acquired the ownership of the instant building, has a duty to return KRW 90,000,000 to the Plaintiff, a person having chonsegwon, since the lease period expired for the instant building portion.

(2) As to this, the Defendant asserted that, even if there was a lease contract on the part of the instant building between Nonparty 2 and Nonparty 1, the Plaintiff is merely a person who received only the claim for the return of the lease deposit separate from the right to lease on a deposit basis. The Plaintiff is not allowed to transfer only the above claim for the return of the lease deposit, and that, around September 2002, Nonparty 2 died and his bereaved family members died, and the right to lease on a deposit was extinguished by returning the instant building. Since the Defendant acquired the ownership of the instant building after the right to lease on a deposit basis, the Plaintiff cannot be set up against the Defendant as a right to lease on a deposit basis, and even if the Plaintiff can claim the return of the lease deposit against the Defendant, the Defendant is merely obligated to pay the lease deposit within the amount of KRW 20,000,000, which is the lease deposit under the lease contract between Nonparty 2 and Nonparty 1.

B. Determination

(1) If the Plaintiff acquired a right to lease on a deposit basis from Nonparty 2 to obtain a loan claim against Nonparty 2, and completed an additional registration of the right to lease on a deposit basis, the right to lease on a deposit basis has been held by Nonparty 2, and the right to lease on a deposit basis has been acquired on a condition that the right to lease on a deposit basis arises due to the extinguishment of the right to lease on a deposit basis in the future, and it cannot be deemed that only the right to lease on a deposit basis has been acquired separately from the right to lease on a deposit basis

(2) In addition, after the lapse of April 11, 2004, the expiry date of the lease period of the above lease on a deposit basis, the part of the building in this case was clear and ordered. On the expiration date of the lease on a deposit basis, the effect of the lease on a deposit basis is naturally extinguished even without cancellation of the registration of the lease on a deposit basis, and the effect of the registration of the lease on a deposit basis is continued within the scope of the right of the security to guarantee the right of the lease on a deposit basis. In addition, if the owner of the object of the lease changes the owner of the object of the lease on a deposit basis, the person having the lease on a deposit basis can seek the return of the lease on a deposit basis. Thus, even if the owner of the object of the lease on a deposit basis changed the owner of the object of the lease on a deposit basis, the defendant who acquired the ownership on the building in this case did not return the lease on a deposit basis before the transfer of the ownership on a deposit basis, and as the registration of the lease on a deposit basis remains effective, the defendant is not justified.

(3) In light of the facts acknowledged earlier, it is insufficient to recognize that the entries in the evidence Nos. 2, 9-1, 2, and 10-1, 2, and 11-1, 2-2 of the evidence Nos. 2, and 11-2 were not the lease contract for the part of the instant building between Nonparty 1 and Nonparty 2, but the lease contract for security deposit of KRW 20,000,000, monthly rent of KRW 700,000 was concluded with respect to the part of the instant building, and there is no other evidence to support this. The Defendant’s assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is justified on the grounds of its conclusion, and it is so decided as per Disposition by the defendant's appeal.

Judges Yoon Jae-ap (Presiding Judge)