[전세권회복등기 ][하집1999-1, 322]
In case where a request for auction has been filed on the basis of a lease on a deposit basis, etc. which is not extinguished due to an auction after six months from the date of registration of the entry of the request for auction, whether the request for auction may be withdrawn when submitting a claim for distribution of security deposit, except for security deposit, after
Although the period of lease on a deposit basis has expired six months after the date of registration of the commencement of the application for auction, in case where the decision to permit the successful bid has been made and the successful bid has been made after the expiration of the period of lease on a deposit basis, the person having chonsegwon may assert the validity of the right to lease on a deposit basis against the successful bidder or demand a distribution of the amount equivalent to the deposit money in the auction procedure. Since the person having chonsegwon already applied for auction based on the right to lease on a deposit basis, the right to lease on a deposit basis has already been selected to demand a distribution after the successful bid date, so the right to lease on a deposit basis has been extinguished by the completion of auction. Accordingly, the person having chonsegwon claims that the person having chonsegwon withdrawn the demand for distribution by submitting a claim statement excluding the deposit money after the successful bid date and making an objection on the date of distribution. However, the decision to permit the successful bid based on the premise that
Articles 608(2) and 653(1) of the Civil Procedure Act
National Agricultural Cooperative Federation (Law Firm Shincheon, Attorneys Kim Jong-young, Counsel for the plaintiff-appellant)
Lee Jong-min et al. (Law Firm Taeil, Attorney Cho Yong-hoon, Counsel for the plaintiff-appellant)
1. The plaintiff's primary claim and the conjunctive claim are all dismissed.
2. Litigation costs shall be borne by the plaintiff.
The primary purport of the claim is that the defendant shall, with respect to the real estate stated in the attached list, express his/her consent to the plaintiff on the registration of restoration of the right to lease on a deposit basis, which was cancelled by the Incheon District Court Decision No. 1700 on Jan. 7, 1999, by the registration office of North Incheon District Court No. 1700 on Aug. 30, 1995
Preliminary purport of claim: The judgment of the court below that the defendant Lee Jong-soo and Lee Lee Jong-soo shall pay to the plaintiff the amount of 540,000,000 won which is 25% per annum from the day following the service of the written amendment of the claim to the plaintiff and the day of full payment.
1. Facts of recognition;
(1) On August 30, 1995, the Plaintiff entered into a contract to lease on a deposit basis with the North Korean registry office, the North Korean party, for the establishment of a right to lease on a deposit basis as of August 31, 1998 for the lease on a deposit basis as of 540,000,000 won and August 31, 1998 for the lease on a deposit basis as of August 30, 1995 for the use as a building of the Newdong branch office, which is an affiliated organization, as of August 30, 1995. On August 30, 1995, the Plaintiff registered the establishment of a right to lease on a deposit basis as of August 1136, 195 for the lease on a deposit basis as of August 30, 1995.
(2) As to the whole or a part of the instant real estate, Kim Chang-sub, on September 6, 1995, completed on October 16, 1995, 350,000,000 won with the maximum debt amount, and 36,00,000,000 won with the maximum debt amount, and on December 18, 1995, with the Plaintiff (one new branch office) on December 18, 1995, the establishment registration of a mortgage was completed against the Plaintiff (one hundred thousand,00,000,000 won with the maximum debt amount, and on February 10, 1996, with the Plaintiff (the branch office of Japan) on April 2, 1996, 10,000 won with the maximum debt amount of the instant real estate amount of KRW 390,00,000 with the maximum debt amount of KRW 390,000,000.
(3) However, on February 14, 1998, the non-permanent branch of the Plaintiff affiliated with the Plaintiff applied for a voluntary auction on the instant real estate on the ground of delinquency in the amount of KRW 25,00,000 for loans of KRW 25,00,000 for Kim Chang-ju on the ground of the said mortgage, and the decision of commencement of auction was rendered on February 16, 1998 on February 18, 1998, and the registration of commencement of auction on the instant real estate was completed on February 18, 1998, and the registration of commencement of auction was made on June 25, 1998, the non-permanent branch of the Plaintiff affiliated with the Plaintiff was also rendered on June 25, 1998 on the ground of delinquency in the amount of KRW 935,985,375 on the said mortgage and chonsegwon, including each loan, etc. < Amended by Presidential Decree No. 15823, Jun. 26, 1998>
(4) On December 9, 1998, Defendant Lee Jong-soo and Lee Jong-soo bid for KRW 610,060,000 in the above auction procedure, and rendered a decision to permit the successful bid to the above Defendants on December 9, 1998. After the successful bid price was paid, the above Defendants had been registered as the reasons for the successful bid on January 7, 199, and the registration of the establishment of the ownership was revoked, including the registration of the establishment of the instant chonsegwon.
(5) On January 7, 1999, the Defendant Lee Jong-sik and Lee Jong-chul had completed the establishment registration of a collateral of KRW 80,000 with the maximum debt amount of KRW 80,000 with respect to the instant real estate.
(6) However, on January 27, 1999, the Plaintiff changed the previous attitude and submitted to the party members a claim statement claiming only dividends of KRW 614,250,814 with the exception of the above key money for the purpose of not receiving the distribution of the right to claim the return of the key money for lease on a deposit basis. However, the execution court deemed that the right to lease on a deposit basis was extinguished on the date of distribution on the date of distribution, and completed the distribution procedure by preparing a distribution schedule with the purport that the branch offices of Plaintiff Newdong, a person having a right to lease on a deposit basis would distribute gold of KRW 31,518,690, KRW 104,000, KRW 81,750,401 to the branches of Plaintiff Newdong, a person having a right to lease on a deposit basis.
[Evidence] The fact that Gap evidence 1, Gap evidence 2-1 to 28, Gap evidence 3-1 to 3, and no dispute is raised
2. Determination:
A. Judgment on the main claim
First, the plaintiff argues that the right to lease on a deposit basis of this case is more priority than other mortgage and the period of lease on a deposit basis has expired on August 31, 1998, which was six months from February 18, 1998, when the registration for entering into an application for auction was completed, and therefore, it is unlawful to cancel the contract due to auction pursuant to Article 608 (2) of the Civil Procedure Act, so the registration of the right to lease on a deposit basis should be restored as above, and the defendants are interested in the registration and have a duty to accept it.
The term of the lease on a deposit basis of the right to lease on a deposit basis of this case is expired on August 31, 1998, which is 6 months after the date of the registration of the commencement of the application for auction. However, in the case of this case, the auction procedure continued after the expiration of the lease term and the decision of permission for successful bid was rendered on December 9, 1998, and the successful bid was awarded accordingly. In this case, the person having the right to lease can assert the validity of the right to lease on a deposit basis or demand a distribution of the amount equivalent to the deposit money in the auction procedure, and as long as the plaintiff has already already filed a request for auction based on the right to lease on a deposit basis of this case, the right to lease on a deposit basis of this case was extinguished by the completion of auction
As to this, the plaintiff argued that he withdrawn the demand for distribution by submitting a claim statement excluding the deposit money after the successful bid date and making an objection on the date of distribution. However, as long as the decision to permit the successful bid has not already been made on the premise that the right to lease on a deposit basis for the plaintiff's application for auction based on the right to lease on a deposit basis is extinguished, the withdrawal of the above demand
Therefore, since the cancellation of the registration of chonsegwon in this case is lawful, the plaintiff's primary claim is without merit on the premise that the cancellation of the registration of chonsegwon in this case is illegal.
B. Determination on the conjunctive claim
The plaintiff asserts that since the plaintiff, a successful bidder, was awarded a successful bid on the premise that the registration of the right to lease on a deposit basis was cancelled and the registration of the right to lease on a deposit basis was cancelled, this would have taken advantage of unjust enrichment equivalent to the deposit for lease on a deposit basis without any legal ground, and thus, the above money should be returned. However, as recognized above, as long as the plaintiff, a person having a right to lease, received dividends from the successful bid price and lawfully cancelled the registration of the right to lease on a deposit basis, as long as the registration of the right to lease on a deposit was legally
3. Conclusion
Therefore, the plaintiff's primary and conjunctive claims are dismissed as it is without merit. It is so decided as per Disposition.
Judges Man Jae-Jap (Presiding Judge)