[1] The distinction between chonsegwon and the right of lease

[2] In a case where Party A entered into a lease agreement with Party B for the purpose of raising funds required for new construction of a new building for twenty years, the term of the lease agreement shall be 20 years, and in a case where Party B entered into a lease agreement with Party B for the purpose of registering the establishment of a right to lease on a deposit basis and establishing a neighboring mortgage for security deposit, whether the said agreement shall be deemed a contract establishing a right to lease on a deposit basis (affirmative), and whether the duration of the right to lease on a deposit basis

[1] The term "right to lease on a deposit basis" means a right to possess, use, and benefit from another person's real estate in accordance with the purpose of the right by paying a certain amount of money at the time of a contract for the establishment of the right to use the real estate instead of paying a rent regularly, and offsetting the interest therefrom. The right to lease on a deposit basis and the right to lease on a deposit basis unregistered is divided into a real right under the Civil Act depending on whether a person has made a registration by means of a public announcement of such right. On the other hand, the lease is a contract established by the agreement that one of the parties agrees to allow the other party to use or benefit from any property and the other party agrees to pay a rent for it.

[2] In a case where Party A entered into a lease agreement with Party B for the purpose of financing the new building for the construction of a new building with the title of the lease agreement 20 years for the term of the lease contract, the term of the lease agreement 20 years for the construction of the new building, the term of the lease agreement , and the registration of the establishment of the lease agreement , and the registration of the establishment of the lease agreement , and the registration of the establishment of the establishment of the lease , in order to secure the deposit money , it is a contractual element that the lease , in the case of the lease , the lease , the use of the lease , and the return , is the consideration for the use of the lease , and it is specified that there is no rent other than the deposit , even if the term of the lease , such as the lease , the lease , the term of the lease , the lease , the deposit , and the security of the deposit , shall be considered as a contract establishing a lease , and thus the term of the lease 10 years should be shortened.

[1] Articles 303, 312, 618, and / [2] Articles 303, 312, and 618 of the Civil Act

Aio Industry (Attorney Jeong-ho et al., Counsel for the defendant-appellant)

Hansung Distribution Co., Ltd. (Law Firm Hancheon, Attorneys Kim Ho-ho et al., Counsel for defendant-appellant)

1. As to the buildings listed in the annexed List No. 2, it is confirmed that the contract to establish a right of lease on a deposit basis between the plaintiff and the defendant on April 27, 1989 and the right of lease on a deposit basis established by the registration of establishment of a right of lease on a deposit basis on December 15, 1989 between the plaintiff and the defendant on December 15, 199 shall continue only until December 15, 19

2. The defendant received KRW 5,500,000 from the plaintiff, and at the same time until December 16, 1999 from the plaintiff:

A. Taking procedures to register cancellation of the registration of the establishment of chonsegwon stated in paragraph (1) of this Article;

B. To order the buildings listed in the Attachment No. 2 List

3. The plaintiff's remaining claims are dismissed.

4. Two minutes of the lawsuit shall be borne by the plaintiff and the remainder by the defendant.

The right to lease on a deposit basis stated in Paragraph (1) of this Article is confirmed to continue to exist until April 26, 199. The defendant received from the plaintiff on April 27, 1999 KRW 5,50,000,000,000 from the plaintiff, and simultaneously implemented the procedure for cancellation registration of the right to lease on a deposit basis stated in Paragraph (1) of this Article to the plaintiff. The defendant completed the procedure for cancellation registration of the right to lease on a deposit basis as stated in Paragraph (1) of this Article to the plaintiff from April 27, 1999 and from March 13, 1989; the right to lease on a deposit basis as stated in Attached List No. 2 of this Court; the right to lease on a deposit basis as stated in Attached List No. 43 and 659 of this Court on Dec. 15, 1989; and the right to lease on a deposit basis as stated in Attached List No. 4360, Dec. 15, 1989>

1. Basic facts

The following facts can be acknowledged by adding up all the arguments to the statements in Gap evidence 1-1, 2, 2-1, 2-1, 5-1, 5-2, and each testimony in Gap evidence 1-1, 5-2, the best availableness of the witness, Kim Jong-tae, and the highest protection (except for the parts not trusted below).

A. The Plaintiff, at 21-1 of the Daean-dong 21-1, was operating a bus integrated terminal, and transferred the bus comprehensive terminal, while purchasing land of 354-1 and 66 parcels of land on the ground to start the department store business, and newly constructing a building listed in the attached Table 2 to be used as a bus comprehensive terminal and department store (hereinafter “instant building”). During that process, in order to give up the department store business due to the shortage of funds and secure funds, the Plaintiff was a business operator who will operate the department store in the instant building.

B. The plaintiff proposed the establishment of a branch office in the building of this case to the company operating the department store in Seoul, and around December 198, the plaintiff also proposed such a proposal to the defendant. Accordingly, the defendant conducted a new construction work site and market survey of the building of this case over a considerable period of time.

C. On February 10, 1989, the personnel in charge of the original and the Defendant negotiated on the portion to be used as the department store among the instant building, the term of the contract, the deposit, the method of paying the deposit, etc. At the time, it is finalized that the Defendant offered KRW 5 billion on the terms of the former contract. As to the contract term, the Plaintiff was 20 years from the contract date, and the Defendant was 20 years from the opening date of the department store, thereby re-consultationing on other matters.

D. After that, the original and the Defendant entered into a contract with the content as seen below through a continuous consultation. However, as the Defendant demanded the registration of creation of the right to collateral security before entering into the contract, the Plaintiff received KRW 1 billion from the Defendant on March 4, 1989, and completed the registration of creation of the right to collateral security with the maximum debt amount of KRW 5 billion with respect to each real estate listed in the separate sheet No. 7418, Mar. 13, 1989, which was received on March 13, 199.

E. On April 27, 1989, the Plaintiff entered into a lease agreement between the Defendant on the lease term of 16,882 square meters of the department store building in the instant building with the maximum debt amount of 20 billion won from the date the provisional use of the terminal part in the instant building was approved, and 5 billion won of the deposit for the lease (hereinafter “instant contract”). There is no rent, and the Defendant paid the Plaintiff the lease deposit with the title of value added tax on the Plaintiff’s interest income on the lease deposit with the lease deposit amount of KRW 4,166,66 each month from the opening point to the point of view. The Plaintiff provided the Defendant with a real estate security amount of KRW 6 billion for the lease deposit, and at the same time, provided the Plaintiff with a down payment for the down payment, the Plaintiff established a collateral security amount of KRW 6 billion for the entire land at the location of the object (total 49 parcels). After completing the registration of ownership transfer for the object, the lease agreement was concluded with the order of KRW 16 billion for the entire building and the land attached thereto.

F. The Plaintiff completed the instant building in accordance with the agreement and completed the registration of initial ownership on November 29, 1989, and completed the registration of initial ownership on December 15, 1989, and completed the registration of establishment of a collateral security for the instant building with the maximum debt amount of five billion won as the joint collateral for the instant building on March 13, 1989 by the court No. 4360 on March 13, 1989, and the registration of establishment of a collateral security for each of the instant real estate and the instant building listed in the separate list No. 43660 on March 13, 1989, with the maximum debt amount of one billion won as the joint collateral for the instant building as of March 13, 1989.

G. In accordance with an agreement with the Defendant on December 15, 1989, the Plaintiff paid the lease deposit amount of KRW 6 billion on the instant building by December 15, 1989, and paid KRW 416,670 each month from the date of conclusion of a supplementary contract as value-added tax on interest income, and concluded a supplementary contract with the same content as the contract on April 27, 1989, on the following grounds: (a) the Plaintiff completed the registration of establishment of lease on a deposit basis with the Defendant as the Defendant on April 26, 2009; and (b) the Defendant concluded a supplementary contract with the Defendant on June 12, 1991 for additional use of part 7.5 square meters in storage of the first floor among the instant building.

2. Determination on the request for confirmation of existence of chonsegwon and on the cancellation of registration of chonsegwon creation and on the request for surrender of building name

A. First, on April 27, 1989, the Plaintiff concluded a contract to establish a right to lease on a deposit basis as to the building of this case with the Defendant on the condition that the lease period was 20 years, and completed the registration of establishment of a right to lease on a deposit basis as seen earlier, but the lease period was agreed to be 20 years pursuant to Article 312 of the Civil Act, the lease period is valid only until April 26, 1999, which is 10 years from the date of conclusion

Therefore, the right to lease on a deposit basis and the right to lease on a deposit basis is a right to occupy, use, and profit from another person's real estate in accordance with the purpose of the right to lease on a deposit basis and the right to lease on a deposit basis, which is a real right provided in the Civil Act, depending on whether a registration has been made through public announcement of such right, by paying a certain amount of money and offsetting the interest thereof at the time of a contract for the establishment of the right to use a real estate instead of paying a rent regularly. On the other hand, the lease is mainly a contract established under which one of the parties agrees to allow the other party to use or benefit from a certain object and the other party agrees to pay a rent for it.

According to the above facts, the Plaintiff newly constructed the instant building for the purpose of transferring bus terminals and establishing department stores, which made it difficult to promote funds to secure large amount of funds, and the Defendant offered 5 billion won to the Defendant for the use of the instant building in the process of negotiating the Plaintiff and the use of the instant building. It is an element of the contract to exchange the amount of rent for lease to the Plaintiff as consideration for the use and profit of the leased property. The Defendant stated that it would be free to pay a certain amount every month as value-added tax on interest income on deposit for the instant building (the Defendant would have to pay 9 billion won each month to the Plaintiff as value-added tax on deposit for lease on a deposit basis). Since the Plaintiff’s construction of the instant building was difficult to promote 10 billion won by using the market value of the goods or services supplied to the Plaintiff, the Defendant would be deemed to have concluded the instant lease contract with 90 billion won by using the term “10 billion won for rent for lease on a deposit basis” (the amount of rent for lease on a deposit basis).

Meanwhile, according to Article 312(1) of the Civil Act, the term of chonsegwon shall not exceed 10 years, and if the period agreed upon by the parties exceeds 10 years, it shall be reduced to 10 years. Thus, in acquiring chonsegwon, the period of chonsegwon agreed with the Plaintiff shall be reduced to 20 years. The ten-year period shall be calculated from the time of establishment of chonsegwon, not from the agreed price. The original and the Defendant registered the establishment of chonsegwon on December 15, 1989 due to the contract to establish chonsegwon on April 27, 1989. Thus, the duration of chonsegwon in this case shall be reduced to the period of December 15, 199, which was ten years after December 15, 199.

Therefore, in this case where it is obvious that the defendant acquired the right of lease on a deposit basis, which is the duration of the building of this case until December 15, 1999, as long as the defendant asserted that he acquired the right of lease on a deposit basis or the right of lease on a deposit basis with respect to the building of this case and argued that he had the right of lease on a deposit basis, the plaintiff's claim seeking this right

B. Next, the Plaintiff seeks cancellation of the registration of chonsegwon and the order of the instant building on the premise that the instant contract is a contract establishing a right to lease on a deposit basis.

Therefore, as recognized earlier, the defendant acquired the right to lease on a deposit basis with the duration of the building of this case until December 15, 1999. As such, the defendant is obligated to cancel the registration of the right to lease on a deposit basis stated in Section 1-A of Disposition 1, and order the building of this case until December 16, 1999, the following day after the duration of the right to lease on a deposit basis has expired, and as long as the defendant contests this, it is necessary to file a claim in advance. Thus, the plaintiff's claim is justified within the scope of the above recognition.

C. Defendant’s defense

(1) First, the Defendant’s instant contract is an obligatory lease agreement. However, the Defendant completed the registration of the establishment of chonsegwon by strengthening the contractual status without registering the establishment of the right of lease. Thus, even if the registration of the establishment of chonsegwon is cancelled due to the expiration of the ten-year period of the right of lease, the lease agreement continues to exist until April 26, 2009, which is the term of the contract.

However, as seen earlier, in light of the content of the agreement on the method of payment of rent, the contract in this case is itself the contract to establish the right of lease on a deposit basis. In the event that the contract to establish the right of lease on a deposit basis, which is a public announcement method, is established, the right of lease on a deposit basis, which is stipulated in the Civil Act, shall not be deemed to exist concurrently in the contract to establish the right of lease on a deposit basis, or the defendant has separately registered the right of lease on a deposit basis by maintaining his/her status as the right of lease and strengthening it. The testimony of the right of lease on a deposit basis, which is contrary to the above,

(2) Next, the defendant concluded a lease contract on April 27, 1989 with the plaintiff and agreed to make a lease registration. Since the defendant made a lease registration at will in making the registration, the registration of the establishment of the right to lease on a deposit basis is the registration invalidation of the cause for the establishment of the right to lease on a deposit basis. Therefore, the defendant asserted that the defendant acquired a right of lease with the lease term of 20 years for the building in this case. However, as seen earlier, the registration of the establishment of the right to lease on a deposit basis as of December 15, 1989 by the court of this case was effective for the contract of lease on a deposit basis as of April 27, 1989, and there is no evidence to prove that the above registration was completed without any legal ground. Thus, the defendant's above defense is without merit.

3. Determination on the claim for cancellation of the registration of the establishment of neighboring houses

On the premise that the contract of this case is a lease contract, and only until April 26, 1999, and thereafter is null and void, the plaintiff is obligated to obtain a deposit amount of 5.5 billion won from the plaintiff on April 27, 1999 and at the same time to cancel the registration of the establishment of a lease on a deposit basis for the building of this case. In order to secure the plaintiff's obligation to pay the deposit money for lease on a deposit basis, each registration of creation of a lease on a deposit basis stated in the separate sheet Nos. 1 and 2 shall be completed after April 27, 199, and the registration of the establishment of a lease on a deposit basis for each real estate stated in the separate sheet No. 1 and 2 shall be completed, and thus, the registration of the invalidation of cause

Therefore, since the creditor asserts that the establishment registration of the collateral was the object of the collateral security, it is necessary to claim in advance the cancellation of the establishment registration of the collateral security on the condition of the repayment of the debt, and in other cases, only when the debtor first pays his/her debt, if it is not expected that the creditor would cooperate in the cancellation of the establishment registration of the collateral security even if the debtor pays his/her debt, the creditor needs to claim in advance the cancellation of the establishment registration of the collateral security on the condition of the repayment of the debt.

On the other hand, the defendant only contests the duration of the contract in this case on the premise that the contract in this case is a lease contract, and it does not dispute the amount of the secured obligation, regardless of whether the establishment registration of each collateral stated in the purport of the claim is the object of the security of the obligation. Thus, the plaintiff can only claim the cancellation of each collateral security right against the defendant only by returning the security deposit amount of KRW 5.5 billion to the defendant and extinguishing each collateral security obligation above, and it cannot claim the cancellation of each collateral security right against the defendant in advance. Thus, the plaintiff's claim above is without merit.

4. Conclusion

Therefore, the plaintiff's claim for confirmation of existence of a right of lease on a deposit basis, cancellation of the registration of establishment of a right of lease on a deposit basis, and the request for cancellation of the registration of establishment of a right of lease on a deposit basis shall be accepted within the scope of the above recognition. Since each remaining claim and the request for cancellation of registration of establishment

Judges Hak Tae-ho (Presiding Judge)