Whether only the right to purchase the appurtenances can be transferred without succeeding to the lessee's status.

It shall not be allowed to acquire only the right to purchase the attached object, which is the right of formation, separately from the status of the lessee, without succeeding to the status of the lessee.

Articles 643 and 644 of the Civil Act

Plaintiff

Defendant 1 and one other

Seoul District Court Decision 74 Gohap1267, 75 Gohap192 (Counterclaim Judgment)

1. From among the original judgment, the Defendants (Counterclaims) ordered the Plaintiff (Counterclaim Defendant) to pay in excess of the amount equivalent to KRW 50,000 per month from January 22, 1975, from January 23, 1975, from January 23, 1975, from January 23, 1975, from January 23, 1975, from January 23, 1975, from January 23, 2008 to KRW 50,000 per month from January 23, 1975, from January 23, 1975, the part against the Defendant ordering the payment in excess of the amount equivalent to KRW 50,000 per month from January 23, 1975.

2. The defendants (Counterclaims)' remaining appeal is dismissed.

3. The total cost of the lawsuit is assessed against the Defendants (Counterclaim Plaintiff).

The Defendants (Counterclaim Plaintiff; hereinafter the Defendants are referred to as the Defendants only) shall order the Plaintiff (Counterclaim Defendant; hereinafter the Plaintiff is referred to as the “Plaintiff”) to KRW 50,000 per month from the service profit of the place of this case to the name of the Plaintiff, the amount of which shall be paid in proportion to KRW 50,00 per month from the service profit of the Defendant to the name of the Defendant. The costs of lawsuit shall be assessed against the Defendants. The judgment and provisional execution shall be assessed against the Defendants, and the costs of lawsuit shall be assessed against the Defendants. The costs of lawsuit shall be assessed against the Defendants.

The plaintiff shall pay to the defendants an amount equivalent to five percent per annum from the day following the service of gold 933,787 won and half gushes to the day of full payment. The costs of lawsuit shall be assessed against the plaintiff, and all of the costs of lawsuit shall be assessed against the plaintiff and a provisional execution declaration.

The judgment of the court below is revoked. The plaintiff's claim is dismissed and the judgment is same as that of the counterclaim claim.

1. Judgment on the plaintiff's main claim

(1) The facts that the building in the purport of the claim(s) is owned by the Plaintiff and the facts that the Defendants possess the parts above the building(s) from December 11, 1974 do not conflict between the parties.

(2) On November 20, 1974, the plaintiff sought an order of the above part of the building from the owner of the above part of the building, and the defendants asserted that the plaintiff could not respond to the plaintiff's claim because the plaintiff's lease amount of the above part of the building from the non-party 1, a lessee of the above part of the building from the non-party 1 to the plaintiff with the plaintiff's consent. Thus, the non-party 1 could not respond to the plaintiff's claim because the non-party 1, on May 2, 1974, agreed on the lease amount of KRW 1,60,000 for rent deposit, the lease period of KRW 50,000 for the first time from the date of the house name deposit, and the lease period of KRW 50,000 for the second time from the date of the house name deposit, although there is no dispute between the parties as to the fact that the defendants acquired the right of lease of the above non-party with the plaintiff's consent, it cannot be admitted as evidence by the defendants.

(3) In addition, on November 20, 1974, the defendant argued that he received the right to claim the return of KRW 1,600,00 from the non-party 1 to the plaintiff. Thus, the plaintiff cannot respond to the plaintiff's claim until the above deposit is refunded. Thus, in a lease contract, the tenant's obligation to return the leased object is in a prior performance relationship than the lessee's obligation to return the rent deposit. Since both claims and obligations are not in a concurrent performance relationship, the tenant cannot claim the return of the above deposit unless he has ordered the portion of possession of the building in this case and there is no evidence that the non-party 1 had ordered the plaintiff to occupy the above occupied part of the building in this case (the non-party 1 did not know that the non-party 1 had not yet been able to claim the return of the above provisional execution after the non-party 1's possession without the plaintiff's consent, and it cannot be said that the court below's appeal did not have established the above provisional execution order as to the non-party 1's defense.

(4) The defendants asserted that the above portion of the above building was acquired by transfer from the non-party 1 to the above non-party 6's right to demand reimbursement of 93,787 won. Thus, the non-party 1's assertion that the non-party 6's right to demand reimbursement of 93,787 won cannot be ordered until redemption is made. Thus, the non-party 2's assertion that the non-party 6's right to demand reimbursement of 5's non-party 2's testimony (excluding the non-party 3 and the non-party 1's testimony (excluding the following belief) cannot be acknowledged as non-party 1's non-party 6's assertion that the non-party 6's right to demand reimbursement of 5's non-party 1's non-party 6's above building should be excluded from the above non-party 1's right to demand reimbursement of 5's non-party 1's non-party 6's non-party 1's non-party 6's non-party 2's right to demand reimbursement of 1'

(5) 피고들은 소외 1이 위 점유부분을 임차한후 임대인인 원고의 동의를 얻어 위 임차물에 부속시킨 물건이 있는데 그 시설비로서 도합금 811,750원이 투입되었고, 소외 1은 이에 관한 권리 전부(소유권 및 매수청구권)를 피고들에게 1974.5.10.에 양도하고 1974.5.30.에 원고에게 그 양도통지를 하였으므로 피고들은 그 매수청구권을 행사하고, 그것이 이유없다면 그물건의 소유자로서 소외 1을 대위하여 그 매수청구권을 행사한다고 주장하고 원고는 위 임대차계약시에 시설비는 청구하지 아니하기로 약정하였다고 주장하므로 살피건대, 공성부분에 다툼이 없고 수령사실을 시인하는 을 제12호증(양도통지서)의 기재, 위 증인 소외 1, 3의 각 증언(위 믿지않는 부분제외) 및 윈심 감정인 소외 2의 감정결과에 변론의 전취지를 합쳐보면, 위 점유부분중 식당홀과 객실에 조명 등을 위한 전기공사를 하여 그 전선, 소ㅋ트, 스위치등 부속물의 시설비는 금 17,552원이 된 사실, 피고들은 1974.5.10.에 소외 1의 시설비에 대한 권리 전부를 소외 1로 부터 양수받은 사실을 인정할 수 있고 이에 어긋나는 위 증인 노경금, 소외 5의 각 증언은 믿을 수 없고 달리 반증없는바, 위 전기설비 이외에는 모두 필요비 내지 유익비상환의 대상이 된 물건이고 부속물이라고 볼 수는 없고, 부속물이라고 불 수 있는 전기설비에 관하여서는 원고 주장과 같이 그 시설비를 청구하지 아니하기로 약정하였다고 할지라도 위 약정은 임차인에게 불리하여 민법 제652조 위반으로 위 약정은 무효가 되고 소외 1은 그 부속물매수청구권이 있으나 피고들이 위에서 확정한 바와 같이 소외 1의 임차인으로서의 지위를 승계하지 아니하였으므로 임차인의 지위와는 분리하여 형성권인 위 부속물매수청구권만을 양수할 수는 없으므로 피고들은 특별한 사정이 없는한 직접 그 부속물매수청구권을 행사할 수 없으니 피고들의 위 주장은 더 나아가 판단할 필요없이 이유없고, 피고들이 위 부속물의 소유권을 취득하였으므로 소외 1에 대위하여 그 매수청구권을 행사한다는 점에 관하여는 소외 1은 위 부속물에 대한 소유권을 상실하여 위 매수청구권을 행사 할 수 없을뿐만 아니라 피고들에게는 위 유기용에 대하여 달리 피보전채권이 있다는 것, 소외 1이 무자력이라는 것등 대위권 행사의 요건에 대한 주장입증이 없으므로 어느모로 보나 피고들의 위 주장은 이유없다.

(6) In addition, the Defendant’s defense to the effect that the Plaintiff did not repay the above rent deposit or beneficial expenses and did not purchase the accessories, and that the Defendants merely sought the order of the above possession portion equivalent to the above 7,000,000 won or more at the market price for the purpose of harming the Defendants’ infringement of rights, but rejected the above claim for refund of rent deposit, reimbursement of beneficial expenses, and the claim for purchase of the accessories on the ground as stated above. On the other hand, the Defendant did not have any evidence that the Plaintiff’s claim of this case did not intend to disadvantage the Defendants solely and did not violate the good faith principle.

(7) Therefore, in this case where there is no proof of the right to legally possess and use the above building portion, the defendants ordered the plaintiff who is the owner of the above building to order the above possession portion and there is no special circumstance (the plaintiff terminated the lease against the non-party 1 as a service site without permission). Since the defendants caused damages to the plaintiff due to the above illegal possession, the defendant 1 is jointly and severally liable to pay the amount in proportion to the monthly rent of 50,000 won from January 22, 1975, the day following the day on which the plaintiff was served with the notice of this case that he seeks, and from January 23, 1975, from January 23, 1975 to the day on which the name of the plaintiff was completed.

2. Determination as to the defendants' counterclaims

The defendants, on May 10, 1974, received from the non-party 1 the amount of 933,787 won from the non-party 1 to the plaintiff's right to claim reimbursement of beneficial expenses and the right to claim the attached expenses. Thus, as seen above, the defendants can not exercise the right to claim reimbursement of beneficial expenses or the right to purchase attached expenses to the plaintiff. Thus, the defendants' right to claim a counterclaim is no longer necessary to determine the above amount.

3. Conclusion

In this case, the plaintiff's main claim is accepted on the grounds that all of the plaintiff's main claim is reasonable (the plaintiff jointly and severally claims against the defendants, but the original judgment was ordered to pay damages in installments, but the plaintiff did not appeal against this order). The part ordering payment in excess of the above quoted amount in the original judgment (the part not claimed by the plaintiff) is unfair, and the appeal by the defendants is reasonable, and the appeal by the defendants is dismissed, and the remaining appeal by the defendants is dismissed, and it is so decided as per Disposition by the application of Articles 96, 89, and 92 of the Civil Procedure Act with respect to the bearing of the total costs of the lawsuit.

[Attachment]

Judges Kim Sang-won (Presiding Judge)