(영문) 서울중앙지방법원 2015.10.06 2014나54693

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(영문) 서울중앙지방법원 2015.10.06 2014나54693

추심금

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

2. All costs of the lawsuit shall be borne by the Plaintiff.

Reasons

1. Basic facts

A. On February 21, 2007, the Defendant drafted a lease agreement (A evidence No. 4; hereinafter “instant lease agreement”) with respect to 3 partitions and bathing rooms in the second floor of buildings E and F, and 75.81 square meters in total (hereinafter “the instant real estate”), as the “security deposit amount of KRW 85,000,000, and from April 7, 2007 to April 6, 2009, as the term of lease, from April 7, 2007 to April 6, 2009, as the lessor B and lessee C.

B. On December 3, 2013, the Plaintiff issued a collection order for the claim amounting to KRW 64,00,00 based on the original copy of the loan payment order in the instant lease agreement, which was issued by the court below 2013TT No. 37576, Dec. 3, 2013.

On December 10, 2013, the above order of seizure and collection was served on the defendant.

[Ground of recognition] Facts without dispute, Gap evidence No. 1, Gap evidence No. 4, the purport of the whole pleadings

2. Determination on the cause of the claim

A. The Plaintiff’s assertion (1) around February 21, 2007, upon receiving a proposal from D to donate to C a claim for the return of deposit under the instant lease agreement, and accepted this proposal and concluded a lease agreement between D and the Defendant on February 21, 2007.

C has received the amount equivalent to the deposit money from D, so the lessee of this case is C under the lease contract of this case.

In order to receive loan claims against C, the Plaintiff acquired the transfer of the right to return the lease deposit under the instant lease agreement, and obtained the seizure and collection order against the Defendant on December 3, 2013 by using the above loan claims as the execution bond.

(2) If the tenant under the instant lease agreement is not C but D, the lease agreement that C is a tenant is null and void as a false declaration of agreement, and the defendant cannot oppose the plaintiff as the collection creditor who is a bona fide third party.

(3) Therefore, the defendant shall make the collection amount to the plaintiff 64,000.

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