The amount of dividends 1,020,100,023 won against the defendant among the dividend table prepared by the above court on August 31, 2012 with respect to the auction of real estate (No. 16610) in Jeju District Court Decision 2010 other, the amount of dividends 1,020,100,023 won for the defendant, 6,000,000 won for the amount of dividends to the plaintiff 1, and the amount of dividends to the plaintiff 2 shall be corrected to 10,000,000 won, respectively.

2. All costs of the lawsuit shall be borne by the defendant.

A. On October 28, 2002, Plaintiff 1 leased the first floor retail store of the building indicated in paragraph (4) of the attached Table (hereinafter “instant building”) from the Sejong Commercial Co., Ltd. (hereinafter “Seoul Commercial Code”) by setting the lease deposit amount of KRW 6 million, from October 28, 2002 to October 27, 2003. On November 14, 2002, Plaintiff 1 registered the relevant store with a drawing of the relevant store, and obtained the fixed date on the same day after completing the business registration. After the expiration of the above lease term, Plaintiff 1 continued to renew the lease contract on the said store after the expiration of the lease term, and received the lease deposit of KRW 8 million, lease deposit of KRW 100,00,000 from August 1, 2009 to the fixed date of KRW 301,000,0000,0000 from August 16, 2009.

B. Around July 2, 2002, Plaintiff 2 leased the first floor retail store of the instant building from the Sejong Master’s Name Company with a lease deposit of KRW 10 million, the lease deposit of KRW 20 million from July 2, 2002 to July 1, 2003. On December 26, 2002, Plaintiff 2 completed business registration with the drawings of the relevant store and obtained a fixed date on the lease agreement on the same day. After the expiration of the lease term, Plaintiff 2 continued to renew the lease agreement with Nonparty 1, the owner of the instant building, and the lease contract from August 1, 2009 to July 31, 2010, and then renewed the lease contract with the term of the lease agreement on the same day. < Amended by Presidential Decree No. 21674, Dec. 26, 2002; Presidential Decree No. 21672, Aug. 1, 2009>

C. On the other hand, on June 12, 2007, the Defendant completed the registration of creation of a neighboring mortgage (hereinafter “registration of creation of a neighboring mortgage”) with respect to each real estate listed in the separate sheet (hereinafter “each of the instant real estate”) with the debtor Nonparty 2, the mortgagee, the defendant, and the maximum debt amount at three billion won, and thereafter, on July 2, 2007, the debtor of each of the instant neighboring mortgages of this case changed the maximum debt amount to Nonparty 5 (based on the acquisition of a contract on June 20 of the same year) and Nonparty 1 (based on the acquisition of a contract on the same day) on July 27, 2009, respectively, and the maximum debt amount was changed to two billion won on the grounds of a modified contract on May 7, 2008.

D. Upon the Defendant’s application, on December 8, 2010, Jeju District Court No. 2010, around 16610 (hereinafter “instant auction procedure”) started, and the period for the completion of the demand for distribution was determined on February 28, 201. On February 17, 2011, Plaintiff 1 submitted to the enforcement court the report of the right and the application for the demand for distribution (tentative lease) stating “The lease deposit amount was KRW 9 million, the lease date was August 1, 2009; the fixed date was December 4, 2009; Plaintiff 2 attached the lease agreement on August 1, 2009; Plaintiff 2, on February 18, 2011, submitted to the enforcement court the said report on the right to lease and the application for the demand for distribution (tentative lease) stating “the lease deposit was KRW 200,000, August 19, 200.”

E. On July 2012, after the completion date of the demand for distribution, the Plaintiffs submitted each written opinion (Evidence A2-1 and Evidence A-4-1) to the court of execution that “Plaintiff 1 entered into a lease contract at around August 28, 2000 and obtained the fixed date on November 14, 2002 by entering into the lease contract at around July 2002, and Plaintiff 2 entered into the lease contract at around July 2002, and obtained the fixed date on December 26, 2002.”

F. In the instant auction procedure, each of the instant real estate was sold at KRW 1,050,000,000. On August 31, 2012, the executing court prepared a distribution schedule (hereinafter “instant distribution schedule”) that distributes each of the instant real estate to the Defendant, the applicant creditor and the mortgagee, who is the right to collateral security, who is the first priority on the date of distribution, and the third priority on the date of distribution, Nonparty 4, who is the lessee with a fixed date, with the second priority on the date of distribution, who is the lessee with the third priority on the date of distribution, and KRW 6,00,000,000,000.

G. On the above date of distribution, Plaintiff 1 raised an objection against KRW 6,000,000 out of the Defendant’s dividend amount, and Plaintiff 2 raised an objection against KRW 10,000,00.

[Based on Recognition] In the absence of dispute, Gap evidence Nos. 1 through 7, 9, 26 through 28, 30 through 32, Gap evidence Nos. 2-1, 2, 17, Gap evidence Nos. 4-1, 2, 5, Gap evidence Nos. 10-1, 2, Eul evidence Nos. 10-1, 10-2, and Eul as a result of an order to submit taxation data to the director of the competent tax office for the first instance, the purport of the whole pleadings

2. The party's assertion and judgment

A. The parties' assertion

1) The plaintiffs originally owned on September 20, 1980 that the building of this case was owned by Sejong Masters (the plaintiffs stated that the building of this case was owned by the non-party 2, but the non-party 2 was the representative director of Sejong Masters' and the party who entered into a lease contract with the above plaintiffs was also three masters. The plaintiffs' above statements were transferred the ownership to the non-party 5 on July 27, 2007, and again transferred the ownership to the non-party 1 on July 27, 2009. The plaintiffs leased each shop within the building of this case from the three masters's name, and the plaintiff 1 obtained the fixed date at the time of the lease contract at the same time after business registration was completed on November 14, 202, and the plaintiff 2 had the right to preferential reimbursement of the fixed date at the time of lease contract and the right to preferential reimbursement of this case to the non-party 25 of this case.

2) As to this, the defendant, even though he has the right to preferential reimbursement under the Commercial Building Lease Protection Act, can receive a distribution only by the completion date of the right to demand a distribution, if he did not make a lawful distribution, he shall not receive a distribution, and after the completion date of the right to demand a distribution, it shall not be permitted to alter or modify the existing right to demand a distribution, as well as a new distribution, after the completion date of the right to demand a distribution. Accordingly, according to the plaintiffs' report on each right submitted to the court of execution prior to the completion date of the right to demand a distribution and the application for a request for a distribution and each lease agreement attached thereto, the plaintiff 1 is limited to the tenant with each fixed date on December 4, 2009, and the plaintiff 2 is limited to the plaintiff 1 with each fixed date on August 18, 2009, and the defendant is a creditor higher than the plaintiffs, who completed the registration of the establishment of each right to demand a distribution on June 12, 2007.

B. Determination

When a lessee who has entered into a lease contract with respect to a commercial building completes the delivery of the building and the registration of the business as prescribed in Article 5 of the Value-Added Tax Act, Article 168 of the Income Tax Act, or Article 111 of the Corporate Tax Act, he/she has the opposing power against the third party from the date following the registration of the business pursuant to Article 3(1) of the Commercial Building Lease Protection Act, and the lessee who has the fixed date in the lease contract certificate has the right to be paid the deposit in preference to the subordinated right holder, etc. when he/she puts an auction under the Civil Execution Act pursuant to Article 5(2) of the Commercial Building Lease Protection Act. In addition, even where the lease contract with opposing power and preferential repayment right is renewed, the opposing power and preferential repayment right under the first lease contract shall be maintained within the scope of the previous lease contract (see, e.g.

In light of the above legal principles, the lease agreement of August 1, 2009, which was submitted by the plaintiffs at the auction procedure of this case, was prepared in the course of the renewal of the previous lease agreement with respect to each of the stores leased by the plaintiffs several times. The lease agreement of this case is merely different from the lease term, and it is substantially identical with the core of lease agreement such as lease object. Thus, it is reasonable that the plaintiff 1's previous lease agreement with the fixed date date of November 14, 2002 and the previous lease agreement with the fixed date of December 26, 2002, maintained opposing power and preferential right of payment as it is. Although the plaintiffs submitted the lease agreement of this case as of August 1, 2009, when they received a demand for distribution at the auction procedure of this case, the plaintiffs asserted a fixed date under each of the previous lease agreement with the court of execution, and therefore, it is reasonable to deem the plaintiffs to have claimed a demand for distribution after 200,700,000.

Therefore, Plaintiff 1 was the lessee who lawfully demanded a distribution with the fixed date on November 14, 2002 and December 26, 2002, and the amount of the dividends against Plaintiff 2 should be revised as KRW 1,020,100,023 of the instant distribution schedule as KRW 1,004,100,023 of the amount of dividends against the Defendant, KRW 6 million, and KRW 1,000,000,023 of the instant distribution schedule, respectively.

3. Conclusion

Therefore, the plaintiffs' claim against the defendant is justified, and since the part against the plaintiffs in the judgment of the court of first instance is unfair with different conclusions, the plaintiffs' appeal is accepted and the part against the plaintiffs in the judgment of first instance is modified as ordered to correct the distribution schedule of this case. It is so decided as per Disposition.

[Attachment]

Judges Sung Pung-sung (Presiding Judge)