[2] In a case where Party B, who leased part of a house upon entering into a housing lease agreement with Party B, continuously occupied part of the house in the preceding auction procedure on the house, and again occupied a part of the deposit, which was distributed by exercising the right to preferential reimbursement, and then again sold the house to the preceding auction, and then prepared a new lease agreement on the part of the house with Party B, who purchased it before and completed the registration of ownership transfer, and Party B, based on a new lease agreement, has the right to preferential repayment or preferential repayment as stipulated in the Housing Lease Protection Act, the case holding that the lower court erred by misapprehending the legal principles, in light of all the circumstances, since the new lease agreement is separate from the previous lease agreement, Party B may have the right to preferential repayment or preferential repayment as stipulated in the Housing Lease Protection Act, based on the new lease agreement

1. Plaintiff’s ground of appeal

For reasons indicated in its holding, the lower court rejected the Plaintiff’s assertion that Defendant 2 is the most lessee.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules or omitting judgment, etc. In so determining, contrary to what is alleged in the grounds of appeal, by failing to exhaust all necessary deliberations, and by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules. The lower court’s allegation in the grounds of appeal that the lower court limited the Plaintiff’s dividend amount to KRW 3

2. As to Defendant 1’s ground of appeal

A. After comprehensively taking account of the adopted evidence, the lower court determined that the instant distribution schedule, based on the lease agreement dated August 27, 2015, on the premise that Defendant 1 had the highest repayment right or preferential repayment right under the Housing Lease Protection Act, should be revised as indicated in its reasoning, on the ground that it is difficult to view Defendant 1 as a new lessee, even if Defendant 1, who received part of the instant house from Defendant 1 by exercising the right to preferential payment right in the preceding auction procedure as indicated in the judgment by Defendant 1, and that, based on the lease agreement dated August 27, 2015, based on the premise that Defendant 1 had the highest repayment right or preferential repayment right under the Housing Lease Protection Act, should be revised.

1) On September 1, 2012, Co-Defendant 3, Co-Defendant 3 of the lower judgment, Nonparty 1’s mobile phone number is indicated as Nonparty 1’s main owner’s mobile phone number.

2) After the purchase of the instant real estate by Nonparty 4 in the preceding auction procedure as indicated in the holding, the title of ownership was immediately transferred to Nonparty 5 on the same day, and it was again transferred to Nonparty 2 after the lapse of twenty (20) days. As such, it is very unusual that the name of the owner was changed in a short period of time, and it is doubtful that the said person is the true owner, and all of the said persons appears to be Nonparty 1’s member.

3) At the time when Defendant 1 and the above Nonparty 3 concluded a lease agreement on August 27, 2015, Nonparty 1 represented Nonparty 2.

4) At the preceding auction procedure in the holding, Defendant 1 and part of the amount distributed to Nonparty 3 again deposited into the deposit account in the name of Nonparty 6, who is Nonparty 1’s children under the lease deposit amount.

5) From September 13, 2013, Nonparty 3, and Defendant 1 continued to possess each of the instant housing units from March 6, 2012.

6) In order to secure the loan obligation of Nonparty 1 to the Plaintiff, Nonparty 2 created a right to collateral security on the instant real estate in the future of the Plaintiff.

B. However, we cannot accept the above determination by the court below for the following reasons.

1) The burden of proof in a lawsuit of demurrer against distribution shall be in accordance with the principle of allocation of the burden of proof in general civil procedure. Thus, in a case where the plaintiff asserts that the defendant's claim was not constituted, the defendant is liable to prove the cause of the claim, and in a case where the plaintiff claims that the claim was invalidated as a false declaration of agreement or extinguished by repayment, the plaintiff is liable to prove the fact that the plaintiff constitutes the cause of disability or extinguishment (see, e.g., Supreme Court Decisions 97Da32178, Nov. 14, 1997; 2005Da39617, Jul. 12, 2007).

2) The circumstances cited by the lower court are as follows: (a) the lessor at the time of August 27, 2015 regarding the lease agreement as of August 27, 2015 constituted grounds to suspect whether Nonparty 2 was actually in fact as stated in the relevant contract; (b) however, it should be deemed as separate issues as to whether the lease agreement as of August 27, 2015 constitutes a false declaration of agreement or is the largest lessee.

In the event of sale of real estate for auction purposes, the right of lease registered or opposing power after the termination of the lease is extinguished together (see, e.g., Supreme Court Decision 9Da59306, Feb. 11, 2000), and in this case, the previous lease contract that Defendant 1 entered into with respect to part of the instant real estate may be deemed to have been terminated due to the prior auction procedure that was commenced by the senior mortgagee at the time. Therefore, there is considerable room to regard the lease contract that Defendant 1 entered into on August 27, 2015 with respect to the same real estate as the right to use and benefit from the said real estate as a source to acquire the opposing power and preferential right to benefit from the said real estate effectively.

3) Furthermore, even according to the reasoning of the lower court, Defendant 1 continued possession of the same part of the instant house even after the preceding auction procedure as indicated in the judgment, and even after the conclusion of the lease agreement on August 27, 2015, Defendant 1 transferred some of the money to Nonparty 1’s account in the name of Nonparty 6, Nonparty 1’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’

C. Nevertheless, the lower court determined that, solely on the grounds stated in its reasoning, Defendant 1 could not have the right of preferential repayment or preferential payment as prescribed by the Housing Lease Protection Act, solely based on the circumstances indicated in its reasoning. In so doing, the lower court erred by failing to exhaust all necessary deliberations, exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the burden of proof of objection to distribution and the most lessee, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds

3. Conclusion

Therefore, the part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s appeal is dismissed, and the costs of appeal are assessed against the Plaintiff who is the losing party. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Jae-hyung (Presiding Justice)