[2] In case where a lessee holding both opposing power and preferential right to demand a distribution has a balance of security deposit which is not entitled to receive a dividend even if the distribution was made according to the order of priority, whether the successful bidder may raise a defense of simultaneous performance against the balance (affirmative)

[2] The purpose of recognizing both opposing power and preferential right to payment under the Housing Lease Protection Act lies in ensuring that the deposit may be returned, taking into account the stability of the auction procedure, predictability of interested parties, etc., even if a lessee who has both two rights concurrently selected a preferential right to payment and made a demand for distribution of the whole amount of the deposit in the auction procedure under progress for the leased house, it is reasonable to deem that the continued existence of the lease relationship may be asserted until the successful bidder raised a claim against the remainder of the deposit which remains after deducting the amount that could have been distributed from the auction procedure from the total amount of the deposit is returned. In this case, the lessee's demand for distribution is deemed to continue the lease relationship until the lessee receives the refund of the deposit amount pursuant to Article 4 (2) of the Housing Lease Protection Act. Thus, the successful bidder shall succeed to the status of the lessor under the condition that the lease is terminated pursuant to Article 3 (2) of the same Act.

1. On the first ground for appeal

Since chonsegwon, the object of which is part of a building, has an effect only on the part of the building (see Supreme Court Order 91Ma256, 257, Mar. 10, 1992). Even if the right of lease on a deposit basis of the non-party for the purpose of some (second floor) of the building in domestic affairs, was established prior to the defendant acquiring the opposing power, and the right of lease on a deposit basis of this case was extinguished due to the successful bid of this case, as long as the right of lease of the defendant was not the object of the right of lease on a deposit basis of the non-party as the object of the right of lease on a deposit basis, it cannot be viewed that the right of lease on a deposit basis of

The decision of the court below to the same purport is just, and there is no error of law by misunderstanding the legal principles as to the provisions of Article 303 (1) of the Civil Act, such as the theory of lawsuit. It is without merit.

2. On the second and third points

In light of the purport of the provisions of Articles 3(1) and (2), 3-2(1) and (2), 4(2), and 8(1) and (2) of the Housing Lease Protection Act for the protection of lessees (hereinafter referred to as the “Act”), a lessee meeting the requirements of each of the above provisions shall be entitled to claim the continuation of the lease relationship until he/she becomes entitled to the deposit against the transferee of the leased house, and a lessee shall be entitled to receive the deposit under the main sentence of Article 3-2(1) of the Act or the right to receive the preferential repayment from the value of the leased house until he/she is returned, and one of the two rights shall be entitled to be selected at the auction procedure (see Supreme Court Decision 86Meu467, 468, 469, July 22, 1986; Supreme Court Decision 9Da3746, Dec. 24, 1993).

However, according to the facts established by the court below and the related Acts and subordinate statutes that were in force at the time, the plaintiff, a lessee, who has been concurrently holding two rights by satisfying the requirements of Articles 3(1), 3-2(1), and 8(1) of the Act, succeeded to the lessor's status to refund KRW 10,000,000,000, which is the balance remaining after deducting the amount that could have been entitled to dividends from the above auction procedure, in the auction procedure where the building of this case was under way. However, it can be known that the amount that could have been entitled to dividends, if dividends are carried out according to the order of priority, was not paid as KRW 5,00 (the amount actually received as dividends). Thus, the plaintiff, a successful bidder, succeeded to the lessor's status to refund KRW 10,00,00,000, which is the remaining amount

In the same purport, the court below's action is just in accepting the defendant's defense that the plaintiff succeeded to the status of the lessor to return the above deposit amount of KRW 10,000,000, and the plaintiff cannot respond to the plaintiff's request until the same amount is returned, and there is no error of law by misunderstanding the legal principles as to the provisions of Article 3-2 of the Act, such as the theory of lawsuit. All arguments are without merit.

3. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Chocheon-sung (Presiding Justice)