However, if the term of chonsegwon expires due to the expiration of the term of chonsegwon or the termination of the agreement, the effect of the registration of the establishment of the right to lease on a deposit basis is extinguished, and the effect of the registration of the right to lease on a deposit basis exists within the scope of the right to collateral the right to claim the return of the lease on a deposit basis. If the term of chonsegwon expires due to the expiration of the term of chonsegwon, the creditor of the right to lease on a deposit basis may obtain a seizure and collection order against the right to claim the return of the lease on his own name from the auction procedure for the real estate on which the right to lease on a deposit basis has been established: Provided, That in the auction procedure, the execution court does not directly examine the expiration of the term of the right to lease on a deposit basis; if the term of the right to lease on a deposit has been legally renewed, it is impossible to determine whether the term of the right to claim the lease on a deposit has expired, and Article 48 (2) of the Civil Execution Rule provides that "the written request for distribution shall be accompanied by a document attesting the qualifications of the right to claim the lease on a deposit.

1. Article 91(3) of the Civil Execution Act provides, “The right to lease on a deposit basis shall be extinguished by sale if it is impossible to oppose the claims for mortgage, seizure or provisional seizure,” and Article 91(4) of the same Act provides, “The right to lease on a deposit basis, other than the case of paragraph (3), shall be acquired by the buyer: Provided, That if the person having a right to lease on a deposit basis requests a distribution, it shall be extinguished by sale if the person having a right to lease on a deposit basis, other than the case of paragraph (3).” Unlike the right to lease on a deposit basis, which cannot be set up against a mortgage, this purport is that the right to lease on a deposit basis, the right to lease on a deposit basis, regardless of the duration of the right to lease on a deposit basis, shall be extinguished only by the demand of the person having a right to lease on a deposit basis, and shall be taken over to

However, if the term of chonsegwon expires due to the expiration of the right of lease on a deposit basis or the termination of the agreement, the right of real right of lease on a deposit basis is extinguished, and the registration of establishment of the right of lease on a deposit basis exists within the scope of the right of lease on a deposit basis (see Supreme Court Decision 2003Da35659, Mar. 25, 2005). If the right of lease on a deposit basis is terminated due to the expiration of the term of the right of lease on a deposit basis, the creditor of the right of lease on a deposit basis can request a distribution of the right of lease on his own name based on the right of collection after obtaining a seizure and collection order for the right of lease on the deposit basis at the auction procedure for the real estate on which the right of lease on a deposit basis has been established. In addition, in the auction procedure for the above auction, the court of execution does not directly examine whether the term of the right of lease on a deposit basis has expired, and if the right of lease on a building has been legally renewed, it is not possible to consider the expiration of the term of the right of the right of lease on a deposit.

2. Review of the reasoning of the first instance judgment as cited by the lower court and the record reveals the following facts.

(1) With respect to the real estate listed in the attached list of the lower judgment (hereinafter “the instant real estate”), the registration of creation of a chonsegwon (hereinafter “registration of creation of a chonsegwon”) was completed on April 26, 1999 under the name of Nonparty 1, the person having a right to lease on a deposit basis (hereinafter “registration of creation of a right to lease on a deposit basis”) on May 1, 1997, and the registration was completed on June 23, 1997 under the name of Nonparty 2, the person having a right to lease on a deposit basis (hereinafter “registration of creation of a right to lease on a deposit basis”).

(2) On the other hand, on April 21, 1998, the registration of the establishment of the right to lease on a deposit basis was completed in addition to the registration of the right to lease on a deposit basis under the name of co-defendant

(3) On January 2, 2008, the Defendant New Card Co., Ltd. (hereinafter “Defendant New Card Co., Ltd”) received a seizure and collection order as to the portion of KRW 19,152,567 among the security deposit refund claims by Co-Defendant 1 of the court below as to the portion of KRW 19,152,567 out of the security deposit refund claims by Co-Defendant 1 of the court below on April 22, 2008, and completed the additional registration of the seizure of the security deposit deposit claims of this case on April 22, 2008. The Defendant Han Korean Life Insurance Co., Ltd. (hereinafter “Korea Life Insurance Co., Ltd. at the time”) completed the additional registration of the seizure and collection order as to the portion of KRW 8,830,459 among the security deposit claims of Co-Defendant 1 of the court below on May 10, 2009.

(4) On May 12, 2011, at Nonparty 2’s request, the decision to commence voluntary auction on the instant real estate was rendered by the Incheon District Court No. 26355 around 201, and the completion period to demand distribution was set on August 1, 201.

(5) On May 31, 2011, the Defendant New Card submitted the claim statement to the executing court. There is only a copy of the letter of decision on the seizure and collection order of the claim and a general inquiry sheet against the co-defendant 1 of the lower court, as “as the Incheon District Court obtained a letter of decision on the seizure and collection order prior to the registration of the decision on commencing auction as to the registration of the decision on commencing auction, distribution of KRW 30,187,787 is required.”

(6) After the completion period to demand a distribution, the court of execution prepared and kept a detailed statement of sale articles stating that “the right to lease on a deposit basis by the original co-defendant 1 shall not be extinguished by sale, and shall be acquired by the purchaser,” and the auction procedure was conducted under the condition of stating the same purport in the notice

(7) In the auction procedure, Nonparty 3 was the purchaser of the instant real estate and paid the price on July 20, 2012, and the registration of ownership transfer was completed on July 25, 2012. The Plaintiff purchased the instant real estate from Nonparty 3 on September 10, 2012 and completed the registration of ownership transfer on September 10, 2012.

3. Examining these facts in light of the legal principles as seen earlier, since the above statement of claim submitted by Defendant New Card was written only on the cause and amount of the claim against Defendant New Card Co-Defendant 1, and the cause and amount of the claim against Defendant 1 Co-Defendant 1 of the original trial did not contain any statement on the cause and amount of the claim against the settlor of chonsegwon of the original trial, as well as on the submission of explanatory materials as to the termination of chonsegwon due to the expiration of the duration period, the new card cannot be deemed to have lawfully demanded a distribution based on the obligee’s right of subrogation or the collection authority upon the submission of the above statement of claim. Therefore, since the instant real estate was sold at the auction procedure

Nevertheless, the lower court determined that the right to lease on a deposit basis was extinguished by sale, deeming that the submission of the claim statement by Defendant New Card was a legitimate demand for distribution. In so doing, the lower court erred by misapprehending the legal doctrine on demand for distribution of the right to lease on a deposit basis with the highest priority order

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)