[2] The case holding that the right to preferential payment as stipulated by the Housing Lease Protection Act is not recognized in case where the joint owner who held a title trust with another co-owner's own share in the housing and its site and used or made profits from a part of the house to another co-owner, and the house, etc. is sold by auction, etc., if he prepared a lease contract with another co-owner and obtained a fixed date in preparation for the fact

[2] The case holding that the right to preferential payment under the Housing Lease Protection Act is not recognized in case where a co-owner who held a title trust with another co-owner's own share on a house and its site and used or made profit from a part of the house to another co-owner, and the house, etc. is sold by auction, if it is only prepared a lease contract with another co-owner and obtained a fixed date in preparation for the fact that the share

2. However, the above fact-finding and determination by the court below are not acceptable for the following reasons.

(1) According to the facts established by the court below prior to the lease agreement, the building site and building of this case are originally owned by the plaintiff and the non-party 1, and the plaintiff is entrusted to the non-party 1 with the title of his own share in accordance with the agreement with the non-party 1. The above title trust agreement becomes null and void upon the lapse of the grace period under the Act on the Registration of Real Estate under Actual Titleholder's Name. The part concerning the plaintiff's share in the registration of ownership transfer concerning the building of this case in the registration of non-party 1 is effective according to the application of the proviso of Article 4 (2) of the above Act. Since the part concerning the plaintiff's share in the registration of ownership transfer in the non-party 1's name concerning the building of this case is null and void (However, it cannot be asserted against the third party), the plaintiff who had resided in the second floor from October 198 to the second floor of the above second floor of the house of this case, who had been living in the above second floor before the above title trust agreement becomes null and void.

(2) The court below acknowledged the lease relationship between the plaintiff and the non-party 1 as the grounds for the non-party 1's written lease agreement (Evidence 2-2) and the non-party 1's testimony. The above lease agreement is made on March 1, 1997 by the non-party 2, and the above non-party 2 stated that the above lease agreement was made at the time of the above lease agreement. However, according to the court below's reasoning that the non-party 1 was a separate ownership of the plaintiff and the non-party 1's registration under the non-party 1's name, the non-party 9's comprehensive lease agreement was made on March 1, 1997 and the non-party 1's statement was made on the non-party 1's non-party 9's non-party 1's non-party 9's non-party 1's non-party 9's non-party 1's non-party 1's non-party 1's non-party 970 million won's shares.

(3) In addition, the record reveals that, around 2001, a voluntary auction was made with respect to the building site and building of this case, the normal lease deposit with respect to the part of the second floor among the above second floor housing was about KRW 50 million (see evidence 6-1, 2 of this case). If the above lease contract was made after settlement for the same reason as alleged by the plaintiff, the plaintiff is treated as the lease deposit with respect to the part of the second floor housing of this second floor, and the plaintiff paid 1,50 million won much much than the above transaction price to the non-party 1 as the lease deposit with respect to the above part of the second floor housing of this case, and the non-party 1 did not create a mortgage without receiving interest on the money exceeding the appropriate lease deposit for the above second floor. Further, even if the plaintiff and the non-party 2 did not obtain the fixed date on the above lease contract at that time, it cannot be obtain from the empirical rule that the plaintiff was waiting for the transfer registration of ownership of this case to the plaintiff.

(4) If there are circumstances, the Plaintiff did not complete the settlement with Nonparty 1 on March 1, 1997, and did not prepare the above lease contract, but naturally, while the co-owner of the building of this case continued to use or profit from the second floor of the housing of this case while the settlement of accounts has not been completed, it is reasonable to conclude that the above lease contract was prepared, and the company of Nonparty 1 was aware of the fact before the bankruptcy or the construction of the building of this case, and obtained the fixed date of the above lease contract, in comparison with the fact that it could not oppose the third party when the building site and the building of this case are sold at auction, it is reasonable to deem that the above lease contract was made as if the company acquired the right to preferential payment as a housing lease, and it was impossible to grant the right to preferential payment as provided by the Housing Lease Protection Act (see, e.g., Supreme Court Decision 200Da24184, 24191, Mar. 12, 2002).

(5) Nevertheless, the court below concluded that the plaintiff is a housing lessee who has preferential right to payment solely on the ground as seen earlier. There is no error in the misapprehension of the rules of evidence or by misapprehending the legal principles as to preferential right to payment of housing lease without exhaust all deliberations, thereby affecting the conclusion of the judgment. The grounds of appeal pointing this out are with merit.

3. Therefore, the judgment of the court below shall be reversed, and the case shall be remanded to the court below. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)