A. On January 26, 2012, the Plaintiff loaned F KRW 139,00,000 to F, and completed the registration of the establishment of a mortgage on the H head of the Bupyeong-gu Incheon Bupyeong-gu G Building (hereinafter “instant building”) with respect to the obligor F and the maximum debt amount of KRW 180,70,000.

B. On October 1, 2016, the Defendant entered into a lease contract (hereinafter “instant contract”) that leases the instant building from October 31, 2016 to October 30, 2018, between F and F, with a deposit deposit of KRW 25,00,000, monthly rent of KRW 300,000, and the lease period of KRW 300,000, and the lease period of KRW 300,000. The Defendant completed the move-in report on the instant building on November 3, 2016 and received a fixed date on the same day lease agreement.

C. On January 18, 2017, the Plaintiff completed the registration of the voluntary decision to commence the auction on the instant building to Incheon District Court E based on the foregoing collateral security.

In this auction procedure, on July 30, 2018, the court of auction prepared a distribution schedule to distribute the amount of KRW 16,900,000 to the Defendant who demanded a distribution as a small lessee, and KRW 1,187,830 to Bupyeong-gu Incheon Metropolitan City, and KRW 89,347,349 to the Plaintiff, respectively, in the second order.

The Plaintiff appeared on the date of distribution, and raised an objection against the total amount of the Defendant’s dividends, and filed a lawsuit of demurrer against distribution on August 2, 2018.

[Reasons for Recognition] Unsatisfy, entry of Gap 1, 3-7 evidence, the purport of the whole pleadings

2. The parties' assertion

A. The Plaintiff’s Defendant, rather than leasing the instant building for residential purposes, obtained a move-in report and a fixed date to receive preferential dividends as small-sum lessee, and thus, cannot be deemed as a small-sum lessee protected under the Housing Lease Protection Act.

Therefore, the priority dividend should not be recognized for the defendant.

B. The Defendant is a legitimate lessee who was living in the building of this case after concluding a lease contract with Defendant F and paying the deposit money.

3. Determination

A. The Plaintiff is in accordance with the principle of allocation of the burden of proof in general civil procedure, as the burden of proof as to the grounds for demurrer against distribution in a lawsuit of demurrer against distribution.