The case holding that it is sufficient to view that the lease contract on apartment is the most lessee who made a demand for distribution by preparing only the type of lessee in order to receive the deposit for lease, even though the lessee did not express a false intention due to the collusion or receive the deposit for lease in fact.

The case holding that it is sufficient to view that the lease contract on apartment is the most lessee who made a demand for distribution by preparing only the type of lessee in order to receive the deposit for lease, even though the lessee did not express a false intention due to the collusion or receive the deposit for lease in fact.

Articles 187, 393 of the Civil Procedure Act, Articles 3(1) and 3-2(2) of the Housing Lease Protection Act

National Bank Co., Ltd. (Law Firm Rate, Attorneys Park Young-young et al., Counsel for the defendant-appellant)

Defendant (Attorney Kim Dong-dong, Counsel for defendant-appellant)

Seoul High Court Decision 98Na44088 delivered on November 9, 1999

The judgment below is reversed. The case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below acknowledged the whole amount of the above loan principal and interest of the plaintiff 1, 2, and 370 million won as security for the loan claim of the non-party 1, 30 million won against the non-party 1, the non-party 1, the debtor 1, the non-party 2, the plaintiff as the right to collateral security, and the right to collateral security against the non-party 1, 200 million won, and the right to collateral security against the non-party 1, 26 million won, the right to collateral security against the non-party 2, and the right to collateral security against the non-party 1, 300,000 won as the non-party 1, 300,000 won as the right to collateral security against the non-party 2, 97 another 2,3380,000 won as the right to collateral security against the non-party 1, 197.

Furthermore, the above lease agreement of the defendant was made by the non-party 1, and the defendant did not enter into a new lease agreement of this case with the non-party 1, and even if not, the defendant did not have any opposing power under the Housing Lease Protection Act since he was delivered the apartment of this case under the name of the plaintiff before April 3, 1996 and possessed it. Thus, despite the fact that the plaintiff, who is the right to collateral security, was the creditor of this case, was illegal, the defendant did not enter into a lease agreement of this case as to the apartment of this case with the non-party 1, or it was insufficient to recognize that the non-party 4 had no possession of the above apartment of this case on or before April 3, 196 by being delivered with the non-party 1, the non-party 1 and the non-party 2 had the right to collateral security deposit of this case for the non-party 1,300,000,000 won prior to the transfer of the apartment of this case to the non-party 4.

2. However, according to the records, on March 25, 1996 between the defendant and the non-party 1, the lease contract with the lease deposit amount of KRW 130 million on the apartment of this case as of April 1, 1996, the lease contract was made for 12 months from April 1, 1996, and the fixed date was obtained on the lease contract as of April 1, 1996, and the defendant completed the move-in report on the apartment of this case as of April 1, 1996. However, although the court below rejected the plaintiff's assertion that the defendant did not have any opposing power under the Housing Lease Protection Act, and the defendant did not actually conclude the lease contract with the non-party 1 as stated in the above lease contract, and it is difficult to accept in light of the following various measures:

First, according to the facts acknowledged by the court below, the lease contract of this case was executed one week from the date of conclusion of the contract, such as the payment of intermediate payments and the balance, and the delivery of housing, and the defendant, the lessee, entered into the lease contract with the non-party 1 and the non-party 1, who is the lessee, paid the deposit amount of KRW 50 million to the non-party 1, who is actually liable to pay the deposit amount of KRW 80 million to the non-party 4, who was occupied in one square column on the side of the present apartment among the apartment of this case, and the non-party 4 was able to move in one square column of the apartment of this case with the non-party 4 without being fully refunded his deposit money and giving up his opposing power to the owner as the lessee. In general, it is very unusual that the lease transaction of this case is completed within a short period of time, and it is reasonable to conclude the lease contract of this case as above.

Furthermore, according to the records, the defendant and the non-party 2, who is the debtor of the right to collateral security of this case, as well as the non-party 7 who is the defendant, jointly and severally guaranteed the debt of loans to the plaintiff of the Multiduk comprehensive Construction Co., Ltd., which is the representative director (record 49 pages), and the non-party 1 also served in the Multiduk comprehensive Construction Co., Ltd. (Records 341 pages), and in light of the relationship between the defendant, the non-party 1 and the non-party 2, etc., the lease of this case

Second, according to the evidence Nos. 10 (written confirmation) and evidence Nos. 12 (Abstract of Resident Registration) employed by the court below, the non-party 1 transferred the apartment of this case to Dongjak-gu Seoul on March 16, 1996, after purchasing the apartment of this case, but again made a move-in report of this case to his domicile on March 25 of the same year, which is the date of the conclusion of the lease contract of this case. On March 29 of the same year, when the plaintiff visited the apartment of this case, which is the object of mortgage of this case, for the establishment of the right to collateral security of this case and investigated the lease relationship, "the non-party 3 is liable for all the lease problems related to the plaintiff's loan without the owner of the apartment of this case, and the non-party 1 intentionally signed and sealed the lease contract of this case to the plaintiff and delivered it to the non-party 4 and the non-party 1 with the signature and seal of this case, it is difficult to view that the court below intentionally agreed with the non-party 1 and the non-party 4 as well.

Third, if the defendant, the non-party 1, and the non-party 4 agreed to pay 50 million won to the non-party 1 at the time of entering into the instant lease agreement, and the non-party 1's obligation to refund 80 million won to the non-party 4, it is reasonable to enter the contents of the instant lease agreement in the instant lease agreement, despite the fact that it is reasonable to enter such agreement in the instant lease agreement, Eul evidence 1 (lease) signed by the court below shall receive 13 million won on the date of the contract, and the intermediate payment shall be paid 50 million won on March 28 of the same year and the intermediate payment shall be paid 67 million won on April 1 of the same year, and it is not consistent with the above agreement, and it is doubtful that the non-party 1's actual intention is not in accord with Eul evidence 2-1, 2 (each receipt) and so on.

Fourth, according to the records, the defendant was living in Gwanak-gu in Seoul Special Metropolitan City (No. 2 omitted) ○○ Housing (No. 1 omitted), but actually residing in Gangnam-gu (No. 335) Seoul Special Metropolitan City (No. 248 pages), which is the defendant's type non-party 7 (No. 335 pages), and the defendant's wife 8, on December 2 of the same year, after moving the apartment in this case into his domicile, entered into a lease contract with the non-party 7 and 14 million won as to the above △△△△△△ apartment as his child, and completed the auction procedure with the non-party 9, the non-party 10, and the non-party 11 as his domicile on December 18 of the same year, and received a fixed date as his domicile on December 31 of the same year and completed the auction procedure of the above apartment as the non-party 2, the defendant was also aware of the fact that the non-party 1 had received the above apartment as the auction procedure of △△△△△△.

If we look at the above circumstances, it is sufficient to view that the lease agreement on the apartment of this case between the defendant and the non-party 1 was in collusion, or the defendant did not actually move into the apartment of this case and did not receive the delivery of the apartment of this case, and therefore, it is sufficient to view that the tenant made a demand for distribution with only the form of the tenant to receive the rent deposit. In determining the credibility of the evidence related thereto, the court below did not err in the misapprehension of the rules of evidence, which affected the conclusion of the judgment of the court below, because the defendant actually paid money to the non-party 1 and the non-party 4 or the defendant's moving into the apartment of this case, such as the financial materials of the fund that the defendant paid to the non-party 1 and the non-party 4, such as the report on the investigation into the present situation, and the investigation records on the fraudulent case of the non-party 1, even after further investigation and examination, it did not reach the above judgment, and there is no sufficient reason to believe that there was any objective evidence or testimony.

3. Therefore, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition with the assent of all participating Justices.

Justices Cho Cho-Un (Presiding Justice)