[부동산인도명령결정에대한즉시항고][공2010하,1727]
In cases where a person who has the status as a person of the highest priority right and the status as a tenant with opposing power under the Housing Lease Protection Act is extinguished by sale of the right to lease on a deposit basis as a person of the right to lease on a deposit basis (affirmative)
Considering the fact that the contract to establish a right to lease on a deposit basis and the contract party, the object of a right to lease on a deposit basis, and a deposit, etc. without any new interested party under the registration of a right to lease on a deposit basis, and if they meet the requirements for opposing power under the Housing Lease Protection Act, they also take the status as a lessee with the opposing power under the Housing Lease Protection Act. In such a case, the right to lease on a deposit basis, along with the right to lease on a deposit basis, is not to waive his/her status and replace his/her rights with other rights, and it is unreasonable that the opposing power under the Housing Lease Protection Act is extinguished due to the right to lease on a deposit basis established to strengthen his/her status, and the same person has both a right to lease on a deposit basis and an opposing power, so the problem of damage of security value secured at the time of the establishment of a right to lease on a deposit basis does not occur.
Article 3 of the Housing Lease Protection Act, Article 91(3) and (4) of the Civil Execution Act
Re-appellant
Busan District Court Order 2010Ra45 dated May 20, 2010
The reappeal is dismissed. The costs of reappeal shall be borne by the re-appellant.
The grounds of reappeal are examined.
If a person satisfies the requirements for opposing power under the Housing Lease Protection Act by concluding a lease agreement with a person who has no new interested party under the priority order in the registration of a lease on a deposit basis and concluding a lease agreement with a person who has no new interested party under the registration of a lease on a deposit basis, the person becomes entitled to take the position of a tenant with the opposing power under the Housing Lease Protection Act. In such a case, in addition to a lease on a deposit basis, it is unreasonable for the same person to lose opposing power under the Housing Lease Protection Act due to a lease on a deposit basis established to strengthen his/her status, and the same person has both a right to lease on a deposit basis and an opposing power, and thus the problem of damage of collateral value secured at the time of the establishment of a lease on a deposit basis does not occur, even if the right to demand a distribution of a lease on a deposit basis has been extinguished by the sale of a lease on a deposit basis, the buyer of a lease on a deposit may exercise the opposing power based on the remaining deposit which has not been paid and within such scope shall be deemed succeeded to the status of a lessor.
According to the records, the court below's maintaining the first instance court's dismissal of the extradition order application of this case on the grounds as stated in its holding is just in accordance with the above legal principles, and there is no error of law such as misapprehension of
Therefore, the reappeal is dismissed, and the costs of reappeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Shin Young-chul (Presiding Justice)