배당이의
1. The plaintiff's claim is dismissed.
2. Litigation costs shall be borne by the plaintiff.
1. Basic facts
A. The Da apartment E (hereinafter “instant apartment”) in Seocho-gu, Changwon-si, Changwon-si was owned by F. However, on May 2, 2018, the voluntary auction procedure (Seoul District Court G) commenced upon the Defendant’s request, a mortgagee, regarding the instant apartment, and H acquired ownership by selling the instant apartment on February 26, 2019 at the said auction procedure.
B. The auction court opened a date of distribution on March 27, 2019 and distributed the full amount of KRW 94,384,451 to the Defendant (the claim amount: KRW 171,076,175).
The plaintiff appeared on the date of distribution, and raised an objection against KRW 15,00,000 among the amount distributed by the defendant, and thereafter filed the lawsuit of this case, but did not submit the evidence of lawsuit to the auction court within the fixed period.
[Ground of recognition] Items A through 5, 10, 11, 3 and 4, and the purport of the whole pleadings
2. Judgment on the plaintiff's assertion
A. The plaintiff asserted that the plaintiff leased the apartment of this case from F to KRW 15,00,00,000, and completed the delivery of the house and resident registration. Thus, the plaintiff is a small-sum lessee with the right of priority repayment under the Housing Lease Protection Act.
Therefore, the amount of KRW 15,00,000 out of the Defendant’s dividends should be distributed to the Plaintiff. As the Plaintiff did not submit the instant lawsuit even after filing the lawsuit, and the Defendant paid the total amount of dividends, the Defendant sought restitution of the unjust enrichment of KRW 15,00,000 against the Defendant.
B. According to Gap evidence Nos. 1, 2, 6, 9, 12, 13 and Eul evidence Nos. 1, and Eul evidence Nos. 1, 2, 6, 9, 12, and 1, the plaintiff and Eul prepared a real estate lease agreement as of February 20, 2018 with a deposit of KRW 15,00,000 for the apartment of this case, monthly rent of KRW 30,000 for the apartment of this case, and the period of two years (from February 20, 2018 to February 20, 202). The plaintiff obtained a fixed date on February 20, 2018 and completed the resident registration on the apartment of this case, the plaintiff obtained a resident registration as of February 22, 2018 from F’s account, and the total amount of KRW 5,000 for the same month as of February 23, 200,00.