2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

Daejeon District Court 2010 Mata21757 regarding the voluntary auction case of real estate, the dividend amount OOOOOOO on the defendant among the dividend table prepared by the above court on June 5, 2013 shall be corrected to OOO, and the dividend amount OOOOO on the plaintiff shall be corrected to OOOO.

A. In the auction procedure stated in the purport of the claim concerning each real estate listed in the separate sheet (hereinafter referred to as “instant building”) owned by KimB, etc. (hereinafter referred to as “instant auction procedure”), the Defendant reported the right as a commercial lessee against the first floor of the instant building and demanded the distribution thereof.

B. On April 5, 2010, the head of the OE filed a request for issuance of the registration of seizure on the KimB shares of each real estate listed in the separate sheet. On April 17, 2013, in the above auction procedure, the head of the OE filed a request for issuance of the inheritance tax and other property related to each real estate listed in the separate sheet at the auction court (the statutory date April 30, 2008).

C. On June 5, 2013, the court of execution, who was the holder of the right to deliver (the pertinent tax) on the date of distribution, distributes either the OOO or the OOOOO(the instant dividend) to the Defendant, who is the holder of the right to deliver, and prepares and submits a distribution schedule that excludes the Plaintiff from the distribution, the Plaintiff made an objection against the OOO(s) out of the dividends against the Defendant.

[Ground for Recognition: Facts without dispute, Gap evidence 7, Eul evidence 1-2, Eul evidence 2, Eul evidence 2, 3, and 6 (including separate numbers), the purport of the whole pleadings]

2. Judgment on the ground of the Plaintiff’s claim

A. On July 20, 2003, the Plaintiff: (a) leased approximately KRW 180 of the first floor of the instant building as the leased deposit KRW OOO or monthly rent KRW OOOO; (b) resided in the building after receiving the move-in report and the fixed date; and (c) operated the business registration and completed the business registration; (d) accordingly, the Plaintiff asserts that the remainder of the lease deposit after deducting the overdue rent should be paid in preference to the Defendant.

(b) Fact of recognition;

1) On July 2003, the Plaintiff leased a store of 592.813 square meters (hereinafter “instant leased object”) from the KimCC, the owner of the instant building, among the first floor of the instant building, and on May 30, 2006, renewed the said lease agreement with the KimCC on May 30, 2006, the lease deposit amount of KRW 70 million and the term of lease from May 30, 2006 to May 29, 2008.

2) Around July 2003, the Plaintiff received delivery of leased object and resided with his family while running restaurant business. The Plaintiff and his family have approximately approximately 1/5-1/4 of the leased object used as a residence, and the remainder was used as a restaurant. There were three rooms, toilets, and kitchens in the part used as a residence.

3) On July 31, 2003, the Plaintiff completed the move-in report to the instant building; from August 7, 2003 to June 18, 2012, the location of the instant building was the location of the building and the restaurant called the floor.

The business registration has been completed.

4) On June 9, 2006, the Plaintiff obtained a fixed date with respect to the above lease agreement from the head of OO2 OO-gu O2, OO-si.

5) The KimCC died on August 27, 2006 and succeeded to each real estate listed in the separate sheet by KimB.

[Ground for Recognition: Facts without dispute, Gap evidence Nos. 1-4, Eul evidence Nos. 3 and 4 (including paper numbers), the purport of the whole pleadings]

C. Determination

1) Whether a lessee has preferential right to payment under the Commercial Building Lease Protection Act

In order to have a right to receive a security deposit in preference to the Commercial Building Lease Protection Act, not only the delivery of buildings and business registration, but also the confirmation date on the lease contract is required from the head of the competent tax office (Articles 5(2) and 3(1) of the Commercial Building Lease Protection Act). There is no evidence to acknowledge that the Plaintiff has obtained a fixed date from the head of the competent tax office (it is deemed that the Plaintiff did not obtain a fixed date according to the evidence No. 8), and the Plaintiff cannot be deemed to have a preferential right to payment pursuant to the Commercial Building Lease Protection Act

2) Whether a lessee has preferential right to payment under the Housing Lease Protection Act

A) Whether the Plaintiff lawful demand for distribution was made

Since the right to claim the return of lease deposit by a lessee who is registered within the scope of the right of lease to which the Housing Lease Protection Act applies, the existence or amount of the claim shall not be known unless a demand for distribution is made, only a demand for distribution shall be made, and the demand for distribution shall be made in writing, stating the cause and amount of the claim, and other documents proving the qualification for demand for distribution shall be attached (Article 48 of the Regulations

However, as seen earlier, the Plaintiff only made a demand for distribution as a tenant of a commercial building in the instant auction procedure, did not make a demand for distribution as a tenant entitled to preferential repayment under the Housing Lease Protection Act, and did not submit materials, such as a certified copy of resident registration, etc. Therefore, the Plaintiff cannot be deemed to have made a legitimate demand for distribution as a tenant of a house, and therefore, the Plaintiff cannot receive a dividend in the instant auction procedure pursuant to the Housing Lease Protection Act.

B) Whether the Housing Lease Protection Act applies to the leased object of this case

(1) Whether a building constitutes a residential building under Article 2 of the Housing Lease Protection Act shall not be based on the indication on the public register of the leased object, but on its actual purpose, and where a part of the building becomes the object of lease and is concurrently used for residential and non-residential purposes, depending on specific cases, the purpose of the lease, the structure and form of the entire building and the object of lease, the relationship between the lessee and the lessee’s use of the leased object, and whether the lessee operates a daily life at that place (see Supreme Court Decision 95Da51953, Mar. 12, 196).

(2) On the basis of the above legal principle, with regard to whether the leased object of this case can be seen as a residential building, it is true that the Plaintiff’s family had engaged in daily life in part of the leased object of this case separately partitioned by the Plaintiff’s family, but the leased object of this case was registered as a commercial building on the public register, that is, the leased object of this case is 4 to 5 times the part used as a residential building; the leased object of this case used as a residential building is allowed only to pass through the restaurant because there is no separate entrance; the leased object of this case can be used as a residential building for the purpose of residence; and other structure of the leased object of this case, even if part of the leased object of this case is used for the purpose of residence, it is incidental to the business of the restaurant; it is used for the purpose of non-residential building as part of the non-residential building; and it cannot be seen as a case where part of a non-residential building as defined in the latter part of Article 2 of the Housing Lease Protection Act is

If so, the plaintiff's request shall be dismissed.