[2] Whether a lessee can be protected as a small-sum lessee in cases where a lessee becomes a small-sum lessee under the Housing Lease Protection Act due to the reduction of a lease deposit (affirmative in principle)

[2] As long as the main purpose of the actual lease agreement is to use and profit from a house, a lessee may be protected as a small lessee under the Housing Lease Protection Act, unless there are special circumstances such as that the lease agreement is null and void because it is a contract with false conspiracy, although the amount of security deposit was high at the time of the initial lease agreement and it was not a small lessee under the Housing Lease Protection Act.

The legislative purpose of the Housing Lease Protection Act is to ensure the stability of the residential life of citizens by prescribing special cases concerning residential buildings (Article 1). Article 8(1) of the Housing Lease Protection Act provides that the lessee may be paid a certain amount of the deposit in preference to other secured creditors. In the case of small lessee, even though the deposit is a small amount of property, it is reasonable to guarantee the recovery of the deposit even if it harms the status of other secured creditors. In the case of small lessee, it is an exception to the general provisions of the Civil Act. In light of such legislative purpose and the purport of the system, etc., even if the obligee entered into a lease contract with the debtor on the house owned by the debtor and resided therein, the main purpose of the lease contract is not to use and profit-making the house, and in fact, if the lessee was to recover the deposit in preference to others, such lease contract cannot be said to be a small lessee under the Housing Lease Protection Act, or if the lessee did not have any special purpose to use the deposit in preference to others at the time of signing the lease contract and profit-making under the Housing Lease Protection Act.

According to the facts acknowledged by the court below, the plaintiff entered into a lease contract with the non-party on March 25, 2004 with the deposit amount of KRW 70,00,00 ("the first lease contract"), and agreed to repay the defendant's collateral security (the maximum amount of claim KRW 108,00,000) established on the leased portion as the deposit money paid by the plaintiff. Accordingly, the plaintiff delivered the non-party 15,50,000 as the down payment and the intermediate payment amount around that time, but the non-party did not repay part of the debt to the defendant. The non-party 1 was delivered the house of this case on May 15, 200 and completed the move-in contract of this case on June 17, 204 with the non-party 200, the lease contract of this case with the non-party 40,000,000,000 won for the first lease contract of this case as the lease contract of this case.

Nevertheless, the court below held that the lease contract of this case was concluded with the main purpose of collecting the claims for the lease deposit under the first lease contract prior to the prior mortgagee, and that the plaintiff is not a small lessee subject to protection under the Housing Lease Protection Act. In so doing, the court below erred by misapprehending the legal principles on small lessee under the Housing Lease Protection Act, which affected the conclusion of the judgment.

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

Justices Kim Hwang-sik (Presiding Justice)