If a lessee, who has both opposing power and preferential right to payment under the Housing Lease Protection Act, voluntarily applied for a compulsory auction on a leased house with an executive title, such as a final and conclusive judgment of a lawsuit claiming a return of deposit, barring any special circumstances, barring any special circumstance, he/she shall be deemed to have exercised the right to preferential payment among the opposing power and preferential right to payment. In such cases, the lessee, who has a preferential right to payment, exercises the right to preferential payment by means of filing an application for compulsory auction with an executive title, and the lessee, who has a preferential right to preferential payment, has been verified through the inspection of the current status of the enforcement officer, and the sale has been conducted after the auction procedure was conducted, barring any special circumstance, shall be deemed to have been paid prior to the junior creditor or ordinary creditor in the distribution procedure.

According to the reasoning of the lower judgment and the record, the Plaintiff leased the instant house from the Nonparty on September 10, 2008 to September 10, 201, with a deposit of KRW 80 million, the lease period from September 10, 2008 to September 10, 201. The Plaintiff completed the delivery and resident registration of the instant house on the same day, and obtained a fixed date in the lease contract. After the expiration of the above lease period, the Plaintiff filed a lawsuit against the Nonparty seeking the return of the said deposit of KRW 80 million against the Daejeon District Court 201Da12689, Daejeon District Court 201Da12689, and received a final judgment in favor of the Plaintiff. Upon the above final judgment, on July 6, 2011, the Plaintiff entered the distribution schedule of KRW 60,500,000,000,0000,000,0000,000 won were 96,000,000 won.

In light of the above facts in light of the legal principles as seen earlier, the plaintiff selected preferential right under the Housing Lease Protection Act by applying for a compulsory auction on the housing of this case with the final judgment in favor of the lawsuit demanding the return of deposit amount as the executive title. Since the plaintiff had the requirements for counterclaim and the fixed date stated in the current status survey report and the sale of the housing, the auction procedure of this case was in progress and the housing of this case was sold, the auction court should have conducted the distribution in preference to

Nevertheless, the lower court erred by misapprehending the legal doctrine on preferential right to payment under the Housing Lease Protection Act, which affected the conclusion of the judgment, solely on the ground that the Plaintiff failed to submit documents proving that the Plaintiff is a lessee having preferential right to payment by the deadline for the completion of demand for distribution to the auction court. In so doing, the lower court erred by misapprehending the legal doctrine on preferential right to payment under the Housing Lease Protection Act, thereby adversely affecting the conclusion of the judgment.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)