2014Gadan38718 Return of Deposit for Lease

A person shall be appointed.

Attorney Kim J-young, Counsel for the plaintiff-appellant

A person shall be appointed.

Law Firm Barun, Attorney Lee Jae-soo

Attorney Kang Jin-soo, Lee Jin-chul

January 16, 2015

January 30, 2015

1. The plaintiff's claim is dismissed.

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

The defendant shall pay to the plaintiff KRW 45,000,000.

1. Facts of recognition;

A. From March 13, 2008 to May 21, 2010, the Plaintiff leased KRW 45,000, and KRW 00 as indicated in attached Table 1 (hereinafter “instant house”) from 00 to 102, and obtained a fixed date in the lease agreement on April 25, 2008.

B. On May 6, 2008, the Plaintiff completed the move-in report as Seoul 00-Gu 000 - 537 - 213 102. Afterward, the Defendant: (a) awarded the instant house in the Seoul Western District Court case (Seoul Western District Court 2012Ma1789; and (b) the compulsory auction (hereinafter “instant auction”) for real estate auction (hereinafter “the instant auction”); and (c) paid the sales price on January 16, 2014, and acquired the ownership thereof.

D. Meanwhile, the Plaintiff did not receive dividends as a lessee in the distribution procedure of the instant auction.

[Judgment of the court below] The ground for recognition is without merit, Gap evidence 1 through 4, and the ground for appeal

2. Determination

A. The parties' assertion

The plaintiff asserts that the defendant is the transferee who was awarded the contract of this case by the auction of this case and succeeded to the lessor's status pursuant to Article 3 (3) of the Housing Lease Protection Act. Thus, the plaintiff is obligated to return the lease guarantee amount of KRW 45,00,000 to the plaintiff.

As to this, the defendant did not accurately state the address of the leased object and did not acquire the opposing power by concluding the move-in report. Therefore, the defendant did not accept the plaintiff's claim.

B. Determination

Therefore, the issue of whether the Plaintiff acquired opposing power with respect to the instant house is determined by the method of public announcement that enables a third party to clearly recognize the existence of a lease for transaction safety, and the validity of public announcement of a lease is determined by generally accepted social norms as to the issue of whether the Plaintiff’s acquisition of opposing power with respect to the instant house is determined based on whether the lessee can be recognized as a person who has an address or residence in the relevant lease building due to his resident registration (see, e.g., Supreme Court Decisions 2002Da59351, Jun. 10, 2003; 2001Da80204, Mar. 15, 2002; 9Da15597, Sept. 3, 199; i) the status of the building and the degree expected of the lessee to participate in the auction procedure or to the extent of the right to participate in the auction procedure, and (ii) the scope of interest as to the building’s establishment of a security interest is reasonable.

Accordingly, in full view of the facts not disputed between the parties and the statements in Gap evidence No. 4-8, Eul evidence No. 1, 3, 6, Eul evidence No. 4-1 and Eul evidence No. 4-2, and the overall purport of the pleadings, the following facts are recognized:

① Seoul 000-dong 000 - 537 - 212 - 537 m215 m213 m2.

② The instant housing is constructed on the said 537-213 site by three stories above ground, one story below ground, and one tower below ground, and the instant housing listed in attached Table 2 (hereinafter “instant adjacent housing”) is separate from the instant housing, and is constructed on the instant land over the said 537-212 and 537-213 site.

③ The instant house is registered in the building register as the above 537-212 and 537-213 site, and the building number is 'non-Dong'. The instant adjacent house is registered in the building register as the location number above 537-212 and 537-213 site, and the building number is 'transfer to the building register'. Each building register is registered in the building register as the actual situation. The number of the instant house and adjacent house is 537-212 and 537-213 site, and the building number is 'transfer to the building.'

1. No. 1 The instant housing and adjacent housing are registered in one building ledger as shown in attached Table No. 3, and the structure, use, and size of each floor of each building are specified in the above building ledger, and the first floor of the instant neighboring housing is indicated as "No. 1 (B Dong)", and the first floor of the instant neighboring housing is indicated as "one floor (Adong)", while the remaining floors of the instant housing and adjacent housing are written in only the number of floors, each floor can be divided into different areas.

⑤ The lease agreement drawn up by the Plaintiff from March 13, 2008, 102, which was drawn up by leasing No. 102 of the instant house from March 13, 2008, stated that “Seoul 00-Gu 000 - 537 - 102, 213 non-dong 102.

1. On May 6, 2008, the Plaintiff made a move-in report related to the lease of the instant housing, and entered his domicile into “Seoul 00-Gu 000 - 537 - 213 102.”

7) After 537 - 212 and 537 - 213 with respect to the building site of this case and the housing of this case, this0 won was completed on May 20, 201, the registration of creation of a mortgage over the maximum debt amount of 260,00,000 won in the future of Hana Bank Co., Ltd. on May 20, 201, and again, the registration of creation of a mortgage over the maximum debt amount of 300,000,000 won was completed on December 1, 2011.

④ On September 12, 2012, one bank filed an application for voluntary auction with the Seoul Western District Court 2012 other or around 17789 upon the registration of the establishment of the above neighboring mortgage, and the auction of this case commenced on September 12, 2012, and thereafter the Defendant was awarded the bid for the housing of this case.

(9) At the time of the auction of this case, the auction of this case was classified into the above 537 - 212 and 537 - 213 the building site and the housing adjacent thereto, and the present status investigation was conducted by classifying the building site and the housing adjacent thereto into each floor and unit of the instant housing and the neighboring housing.

According to the above facts, ① although the instant house and its neighboring house were registered in the same building register, even according to the entry in the register, it can be known that there are two buildings other than one building. ② Each building register of the instant house and their neighboring house are recorded in the current status of each building, and their location are the same, and the building number is divided and indicated in the non-Dong, ③ the lease contract prepared by the Plaintiff from 00 entered the instant house into the building register and the building register, but the Plaintiff did not make a move-in report with the omission of the indication of the “non-Dong-dong”, ④ the instant auction was conducted based on the establishment registration of a neighboring building established in the instant house and its neighboring house after the lease of the instant house, ⑤ the auction of this case became a separate object, and the present status of each building register of the instant house and its location is different from the current status of lessee, ③ the lease contract prepared by the Plaintiff by 00 entered the instant house in the building register and entered the building register in the building register under Article 4 of the Enforcement Decree of the Resident Registration Act.

Therefore, (i) Although there are some differences in the current state on the building register of this case, the current state of the building register is consistent with the actual state, (ii) the Plaintiff was required to distinguish the housing of this case from the neighboring house of this case which is located in the same domicile under the law, and there is no de facto restriction on the Plaintiff’s entry, in view of the fact that (iii) the auction procedure was conducted based on the collective security right that is set up after the Plaintiff’s move-in report as a joint security, and the present state on the building register of this case, including the lessee, was divided into the housing of this case and the neighboring house, and did not distort the appraisal of the value of the housing of this case at the time of the auction of this case, the Plaintiff’s move-in report was completed with the omission of the indication of the housing of this case, and the Plaintiff’s resident registration did not acquire the opposing power of the Plaintiff’s moving-in report as to the housing of this case before the auction of this case.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judge Go-man

A person shall be appointed.

A person shall be appointed.