2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

From among the distribution schedule prepared by the above court on December 22, 2006, in the distribution procedure for the Busan District Court C voluntary Auction case, the plaintiff's dividend amount of KRW 14,00,000 and the defendant's dividend amount of KRW 19,88,160 shall be corrected to KRW 5,88,160.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

A. On June 24, 2004, the D Association (hereinafter referred to as the "D Association") was established with respect to F-building G (hereinafter referred to as the "real estate of this case"), which is owned by E, as a collateral for a loan claim against E (hereinafter referred to as the "E"), with respect to F-building G (hereinafter referred to as the "real estate of this case"), the maximum debt amount of which is 91 million won. On May 2, 2005, the Defendant was established with respect to the real estate of this case with a maximum debt amount of 45 million won. (B) On August 16, 2005, E transferred the real estate of this case to H on the condition that the Defendant’s right to collateral was cancelled within September 10, 2005, and H transferred the real estate of this case to H on the same day.

C. The D Union filed an application for voluntary auction of the instant real estate with the Busan District Court C on January 18, 2006, as the said loan was not repaid, and the said court rendered a decision to commence voluntary auction on January 20, 206.

D. The Plaintiff applied for the allocation of dividends to a small lessee during the said voluntary auction procedure.

E. On the date of distribution on December 22, 2006, the above court prepared a distribution schedule with the content of distributing the amount of KRW 111,052,640 out of KRW 164,480 out of the amount to be distributed to the Defendant, who is the mortgagee, to the Busan East-gu Office, the holder of the right to deliver the amount of KRW 111,052,640, and to the association, the holder of the right to deliver the amount of KRW 91,00,000,000,000 won, to the Association

F. The Plaintiff appeared on the date of distribution, and raised an objection against the Defendant’s dividend amount of KRW 14 million, and filed a lawsuit of demurrer against the distribution of this case.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Gap evidence 6-1, 2, Gap evidence 7, and 15, the purport of the whole pleadings

2. The plaintiff's assertion

On January 9, 2006, the Plaintiff entered into a lease agreement with E on the instant real estate with the lease deposit of KRW 14 million, monthly rent of KRW 100,000,000, and the lease period of KRW 2 years. On January 10, 2006, the Plaintiff entered into a move-in report on January 16, 2006 and entered into the move-in report on January 16, 2006, and obtained the fixed date. On January 18, 2006, the Plaintiff paid the full amount of KRW 14 million to JI, a small amount lessee who has resided in the instant real estate, and thus, is entitled to receive dividends in preference to the Defendant.

3. Determination

On the other hand, the legislative purpose of the Housing Lease Protection Act is to ensure the stability of the residential life of citizens by prescribing special cases on the Civil Act concerning residential buildings. Article 8(1) of the Housing Lease Protection Act provides that the lessee may be paid a certain amount of the deposit in preference to other secured creditors. In the case of small lessee, even if the deposit is a small amount of the deposit, it is a large amount of property, and thus, it is reasonable to guarantee the recovery of the deposit even if it is detrimental to the other secured creditors. In the case of small lessee, it is an exception to the general provisions of the Civil Act. In light of such legislative purpose and purpose of the system, it is reasonable to ensure that the obligee is obliged to make a lease contract with the debtor on the housing owned by the obligor and reside at the same time, but it is not intended to use the real purpose of the lease contract, and in fact, it is not possible to protect such lessee as a small lessee under the Housing Lease Protection Act (Supreme Court Decision 201Da143737, May 8, 2001).

In light of the above legal principles, considering the following facts: (i) the Plaintiff’s assertion that the lease deposit was paid to I before January 18, 2006; (ii) the Plaintiff transferred the lease deposit amount of KRW 10,00,000 to 1,00,000,000,000 to the Plaintiff on December 23, 2005; and (iii) the Plaintiff transferred the lease deposit amount of KRW 1,00,000 to the Plaintiff on 00,000,000,000,000 won to the Plaintiff on 1,000,000,000 won to the Plaintiff on 1,00,000,000 won to 1,000,000 won to the Plaintiff on 0,006,000,000 won to 20,000,000 won to 1,50,000,000 won to the Plaintiff or 1,005,05,05,0.

According to the above facts, even if the plaintiff resided in the real estate of this case after the lease contract of this case, it is reasonable to view that the main purpose of the lease contract of this case is not to use the real estate of this case and to recover the claim in preference to the senior mortgagee by being protected as the small lessee of this case. Thus, the plaintiff cannot be protected as the small lessee of this case under the Housing Lease Protection Act.

Therefore, the plaintiff's assertion is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed due to the lack of reason, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed. It is so decided as per Disposition.

Judges Kim Gung-han

Judge Choi Sang-soo