[배당이의][공1998.12.1.(71),2757]
[1] In a case where a leased house is put up for auction before the lease term expires, whether a demand for distribution by a lessee with opposing power may be deemed as an expression of intent to terminate the lease contract (affirmative), and the time when the termination becomes effective
[2] In the auction procedure requested by a financial institution, when it was unable to serve a notice of a lessee's demand for distribution to the lessor's address reported by the financial institution, whether the lessee's declaration of intent to terminate the lease can be deemed to have reached the lessor, in case where the court sent the notice to
[1] According to the provisions of Article 3-2 (1) of the Housing Lease Protection Act, a lessee who has the requisite for setting up against a third party and the fixed date has the right to receive a deposit in preference to any junior creditor or other creditors from the proceeds of realizing the leased house at the time of auction under the Civil Procedure Act. However, even if such requirements are met, if it is possible to set up against the assignee of the leased house, he may not receive a distribution in the order of priority in the auction until the lease is terminated, and on the other hand, if a lessee who can set up against the assignee of the leased house is put up a demand for distribution at the auction court without the expiration of the lease term, it is clearly indicated that he does not want the continuation of the lease relationship, and barring any special circumstances, it shall be deemed as an expression of intent for termination of the lease. If the auction court notifies the lessor of the demand for distribution and delivers the tenant's termination intention to the lessor through the auction court under Article 606 (1) of the Civil Procedure Act, the lease relationship is terminated as soon as the lease relationship is terminated.
[2] When the auction court, which was the applicant for auction, served a notice of a tenant's request for auction to the address of the lessor (owner) reported at the time of the request for auction and sent it to the same address by registered mail pursuant to Article 3 of the Act on Special Measures for the Delayed Loans by Financial Institutions, if it is impossible to serve a notice of request for auction on the same address, the notice or service would appear to have been served by sending it to the address entered in the real estate register at the time of request for auction or to the reported address at the time of request for auction. However, this is merely deemed to have been served on the lessor. Thus,
[1] Article 3-2 (1) of the Housing Lease Protection Act, Article 606 (1) of the Civil Procedure Act / [2] Article 111 of the Civil Act, Article 3 of the Act on Special Measures for Delayed Loans by Financial Institutions
[1] Supreme Court Decision 94Da37646 delivered on July 12, 1996 (Gong1996Ha, 2458), Supreme Court Decision 97Da28407 delivered on September 18, 1998 (Gong1998Ha, 2509) / [2] Supreme Court Order 94Ma2134 delivered on June 5, 1995 (Gong195Ha, 2490)
Korean Bank, Inc.
Defendant
Seoul District Court Decision 97Na38939 delivered on November 28, 1997
The appeal is dismissed. The costs of appeal are assessed against the defendant.
According to the provisions of Article 3-2 (1) of the Housing Lease Protection Act, a lessee who has requirements for counterclaim against a third party and a fixed date has the right to receive a deposit in preference to any junior creditor or other creditors from the proceeds from the sale of leased house at an auction under the Civil Procedure Act: Provided, That even if such requirements are met and it is possible to oppose the assignee of the house, if it is possible to oppose the assignee of the house, he may not receive a distribution in the order of priority in the auction until the lease expires. Meanwhile, in a case where a leased house is sold at auction, it clearly indicates that the lessee who can oppose the assignee of the house does not want to continue the lease relationship, and barring any special circumstances, it may be deemed as an expression of intent for termination of the lease, barring any special circumstance. If an auction court notifies the lessor of a demand for distribution under Article 606 (1) of the Civil Procedure Act and delivers the tenant's termination intention to the lessor through the auction court, the lease relationship is terminated by termination, and the lessee's demand for distribution at the auction court is not immediately terminated (see Supreme Court Decision 97Da7Da.
In this case, on May 30, 1997, the auction court sent the notice of demand for distribution to the same address as registered mail on June 10, 1997 when it was impossible to serve such notice on the ground that the plaintiff had been appointed to the address of the lessor (owner) who reported at the time of the request for auction. According to Article 3 of the Act on Special Measures for the Credit Loans by Financial Institutions, notice or service in the auction procedure conducted upon the request of a financial institution is deemed to have been served by sending it to the address entered in the real estate registration book at the time of request for auction or to the reported address at the court. However, this is merely deemed to have been served on the auction procedure. Thus, it cannot be deemed that the declaration of termination of the lease contained in the notice of demand for distribution has reached the lessor, and if
In the same purport, the judgment of the court below that the expression of intent to terminate the lease cannot be deemed to have reached the lessor is justifiable, and there is no violation of law as otherwise alleged in the
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.
Justices Lee Don-hee (Presiding Justice)