209 Gaz. 40857 Building Names

ThisA (43 years old, South)

B. (65 years old, female)

Attorney Choi Han-dong, Counsel for the defendant-appellant

January 8, 2010

January 22, 2010

1. The defendant receives KRW 35,00,000 from the plaintiff, and at the same time connects the plaintiff with each point of the attached Form 1,2, 3, 4, 5, 6, and 36 square meters in sequence, among the buildings with the second floor of Man-dong, Busan Metropolitan-dong, Busan Metropolitan City.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by each person;

4. Paragraph 1 can be provisionally executed.

At the same time, the Defendant received KRW 20,000 from the Plaintiff, and at the same time, ordered the Plaintiff to indicate 1, 2, 3, 4, 5, 66, the portion of the attached Form (A) in the ship (hereinafter referred to as the “leased”), which connects the Plaintiff with each point of 36,00 square meters in sequence among the 2nd floor buildings in Busan-dong, Chungcheongnam-dong, Busan.

1. Facts of recognition;

A. On April 20, 2005, the Plaintiff, the owner of the building of the 2nd floor and the building site of the Busan Northern-dong, Busan-dong, determined the lease deposit amount of KRW 20 million, monthly rent of KRW 150,000,000, and the period of 2 years.

B. On February 24, 200 of the previous year, the Defendant paid the above lease deposit amount of KRW 20 million to Ansan1, and the completion of the internal repair work on April 20 of the same year, the Defendant moved into the leased part of the instant case and operated the knife house so far.

C. On February 25, 2009, Ansan1 agreed with the Plaintiff to succeed to the said lease agreement (a lease deposit of KRW 20 million), and sold the said building and site to KRW 200 million, and completed the registration of ownership transfer on the 26th of the same month.

[Reasons for Recognition: Evidence No. 1-2, Evidence No. 2, Evidence No. 2, and 3, Evidence No. 1-3, Evidence No. 31, and the purport of the whole pleadings]

2. Determination

(a) Occurrence of the duty to explain;

On the other hand, there is no dispute between the parties on the termination of the above lease contract.

Unless there exist any circumstances, the Defendant is obliged to receive KRW 20 million from the Plaintiff and, at the same time, to order the Plaintiff to clarify the leased portion.

B. Judgment on the defendant's assertion

(1) The argument

The Defendant asserted that the Plaintiff cannot respond to the Plaintiff’s claim from the Plaintiff who succeeded to the lessor’s status under the Housing Lease Protection Act until the refund of the said KRW 35 million is made, on November 1, 2006, on the leased portion of the instant case, by raising the lease deposit at KRW 35 million, but the monthly rent is not paid, and after entering into a new lease agreement with a two-year period, the aforementioned lease deposit was fully paid, the moving-in report was made on the same day, and the date was the fixed date.

(2) Facts of recognition

다음의 사실은 을 제1 내지 5호증(각 가지번호 포함)의 각 기재와 이 법원의 북부산농협 신만덕지점, 각 구포시장지점, 구남지점, 농협중앙회 반여시장지점, 의정부 시지부, 모라동지점, 범일동지점, 장유지점, 국민은행 김해지점, 주례지점, 구포지점, 대저농협, 부경양돈농협 어방동지점, 우리은행 화명동지점, 둔촌역지점에 대한 각 사실조회결과에 변론 전체의 취지를 종합하여 인정할 수 있고, 이에 반하는 갑 제5호증의 기재와 증인 안C1의 일부 증언은 믿지 아니하며, 달리 반증이 없다.가 피고는 2006. 11. 1. 안C1과 사이에 이 사건 임차부분에 관하여 임차보증 금 3,500만 원, 기간 2년으로 정하여 임대차계약을 체결한 다음, 같은 날 전입신고를 하였고, 다음날 제394호로 확정일자를 받았다.나 피고는 그 전에 안C1로부터 돈을 빌려달라는 부탁을 받고, 동인에게 2005. 3. 31. 800만 원, 같은 해 5. 3. 150만 원, 같은 해 11. 21. 200만 원을 각 송금해 주었고, 2006. 7. 21. 위 건물 1층의 다른 세입자인 이C2(문구 운영)에게 반환할 임차보증금 부족분 397만 원을 안C1을 대신하여 이C2의 통장에 송금하였으며, 같은 해 10. 24. 위 건물 2층의 세입자인 김C3(◆학원 운영)에게 반환할 임차보증금 부족분 100만 원을 안C1을 대신하여 김C3의 통장에 송금하였다.다 피고는 안C1에게 대여한 돈이 1,647만 원(800만 원+150만 원+200만 원+397만 원+100만 원)에 이르자 2006. 11. 1. 안C1과 사이에 위와 같이 새로 임대차계약을 체결하면서 그 중 1,500만 원은 임차보증금 인상분으로 대체하고, 나머지 147만원은 그때까지 연체된 동액 상당의 월세와 상계하기로 합의하였다.

(3) Determination

According to the above facts, as to the leased portion of this case, a new housing lease contract was concluded between the Ansan-1 and the defendant on November 1, 2006 between the lease deposit and the lease deposit amount of KRW 35 million, and the above lease deposit was fully paid to the landlord-C1. Thus, the transferee of the leased house, who succeeded to the status of the lessor, is obligated to return the above lease deposit amount of KRW 35 million to the defendant with the opposing power (occupant and moving-in report).

As to this, the Plaintiff asserted that the above lease agreement of November 1, 2006 was made out in fake and false ways between Ansan1 and the Defendant in order to obtain a loan of the deposit money, but the statement of No. 5 and the witness A's testimony of some of the witness A's testimony are not trustable, but there is no other evidence to acknowledge it. Thus, the above assertion is without merit.

3. Conclusion

Therefore, the defendant is obligated to receive 35,000,000 won from the plaintiff as well as to order the plaintiff to surrender the leased part of this case. Thus, the plaintiff's claim is justified within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. It is so decided as per Disposition.

Judge Sung-il