[2] Whether the opposing power that the lessee has already acquired is maintained in case where the registration of the right of lease is cancelled by an erroneous commission of an auction court even though the lessee failed to receive the total amount of the lease deposit in the auction procedure

[2] The registration of the right to lease of a house is mainly for the purpose of ensuring that the lessee maintains the opposing power of the king. Therefore, the opposing power that the lessee has already acquired shall be maintained, notwithstanding the cancellation of the registration of the right to lease, unless the lessee has any reason to assume the liability to the lessee, unless the registration of the right to lease was cancelled by an erroneous commission of an auction court even though the lessee was not paid the total amount of the deposit for lease in the auction

2. The plaintiff's claim is dismissed.

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

The defendant shall pay to the plaintiff 56,267,69 won with 5% interest per annum from February 2, 2001 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

The same shall apply to the order.

The following facts are not disputed between the parties, or each entry in Gap evidence 1, 2, and 3-1 through 6, Gap evidence 6, 7, and Eul evidence 1-1 and 2, and each entry in Gap evidence 1-2, and each entry in Eul evidence 4 and 5 are likely to be trusted, and there is no other counter-proof.

(a) move-in report and fixed date;

On November 30, 1996, Nonparty 1, the Plaintiff-friendly Nonparty 1 purchased the real estate listed in the separate sheet (hereinafter “instant real estate”) from Nonparty 2, the owner, at the time. On December 3, 1996, the Plaintiff leased and moved the instant real estate from Nonparty 1 as the lease deposit amount of KRW 60 million, and the period of KRW 24 months, and completed the move-in report on December 12, 1996. On January 7, 1997, the ownership transfer registration was completed under Nonparty 1’s name, and the Plaintiff obtained the fixed date on September 26, 1997.

(b) Auction by the mortgagee;

On January 7, 1997, the establishment registration of a neighboring mortgage amount of KRW 156 million was completed under the name of the National Bank of Korea on the instant real estate (i.e., the establishment registration of a neighboring mortgage amount of KRW 182 million was revoked on September 10, 1996 under the name of the Mapo Livestock Industry Cooperatives (U.S. Livestock Industry Cooperatives prior to the amendment). The cancellation was made on January 14, 1997. Upon the application of the National Bank of Korea, which is a right to collateral security, on September 29, 1997, the auction procedure for the instant real estate was commenced on September 29, 197 ( Busan District Court Decision 97Hu23490, Busan District Court Decision 97Hu23490, hereinafter referred to as the “first auction procedure”). The Plaintiff was awarded a successful bid to Nonparty 2, who was the previous owner on December 14, 198, but did not distribute to the auction court on October 20, 1997.

C. Auction based on the plaintiff's protocol of mediation

(1) On January 19, 199, the registration of ownership transfer was completed in the name of Nonparty 2, who is the successful bidder, and on February 9, 199, the registration of ownership transfer was completed in the name of Mapo Livestock Cooperatives, the maximum debt amount of KRW 36.4 million. On April 16, 1999, the registration of ownership transfer was completed in the name of Nonparty 3, and at the same time the registration of ownership transfer was completed in the name of Sung Metal Co., Ltd. with the maximum debt amount of KRW 150 million.

(2) On May 6, 199, the Plaintiff completed the registration of housing lease (hereinafter “instant lease registration”) under the order of lease on May 14, 1999 upon the order of lease registration as Busan District Court Branch Branch 99Kaman972, which was issued on May 6, 199. On August 12, 199, the Plaintiff ordered Nonparty 3, the owner of the instant real estate at the time of the instant order of lease. On November 15, 1999, the Plaintiff filed an application for conciliation against Nonparty 3 for the refund of KRW 60,000,000 from the Busan District Court Branch 9Da27545, May 6, 199, the Plaintiff filed a request for conciliation of the above deposit amount of KRW 97,000 with the court 9,000,0000,000,0000 from March 31, 200, the Plaintiff filed a claim for compulsory auction against Nonparty 361,605.

(d) Distribution on the date of distribution, and objection;

(1) The auction court prepared a distribution schedule of KRW 84,091,31, which is the amount to be actually distributed on January 19, 2001, when Nonparty 4, who obtained the successful bid approval, paid the successful bid price on December 4, 200, and prepared a distribution schedule of KRW 588,720, the distribution date for KRW 60,000 to the head of the Maritime Transportation Authority, who is the seizure authority and the issuing authority, the Plaintiff as the lessee, and KRW 23,502,591, which is the mortgagee, and the distribution schedule of KRW 23,502,591, which is the junior mortgagee, to the Ma Changjin Livestock Cooperative, the junior mortgagee, and which has no distribution amount.

(2) The Mapo Livestock Industry Cooperatives and the Sungdong Metal Co., Ltd. have raised an objection to the distribution against the total amount of the Plaintiff’s dividends on the date of distribution. On January 26, 2001, as to KRW 56,267,669 out of the amount of objection to the distribution, Busan District Court Branch Branch Decision 2001Gahap405 decided January 26, 2001.

E. Judgment against the plaintiff in a lawsuit of demurrer against distribution

The plaintiff, on August 31, 2001, ordered the above court to suspend the plaintiff's distribution amount of KRW 60 million from the above distribution schedule to KRW 3732,331,00,000,000. The plaintiff appealed from Busan High Court Decision 2001 or 13174, but on March 21, 2002, "if the tenant who has both opposing power and preferential rights to payment under the Housing Lease Protection Act has claimed a distribution of the total amount of the deposit in the first auction procedure but failed to receive a distribution of the deposit amount, the tenant's preferential rights to payment cease to exist due to successful bid, and thus, the plaintiff cannot receive a preferential right to payment in the second auction procedure (see, e.g., Supreme Court Decision 98Da4552, Mar. 27, 2001.). The plaintiff's decision was delivered with the first auction order of KRW 16,000,000,000,000,000.

F. Illegal cancellation of the lease registration of this case

However, in the second auction procedure, the auction court filed a lawsuit of demurrer against the plaintiff against the distribution amounting to KRW 56,267,69, and deposited the dividend amount in gold No. 826 in 2001 with the same court. However, on February 2, 2001, the successful bidder filed an application from Nonparty 4, who was the successful bidder, for the cancellation of the registration of the right to lease of this case without confirming the receipt of the plaintiff's dividends, and requested the cancellation of the registration of the right to lease of this case without confirming the receipt of the plaintiff's dividends. Accordingly, the registration was cancelled on the same day.

2. The assertion and judgment

A. The parties' assertion

(1) The plaintiff asserted the existence of the lease relationship until the successful bidder was returned the amount of KRW 56,267,69, which was not paid out of KRW 60,000,000, as opposing right holder, but could not be exercised any longer by cancelling the lease registration of this case illegally due to the lack of ordinary duty of care required for the public officials in charge of auction process of the auction process of the Busan District Court's Dong Branch, Busan District Court. Thus, the defendant's above public official's employer is liable to compensate for the amount of KRW 56,267,669, which was not paid by the plaintiff.

(2) As to this, the Defendant asserts that the Plaintiff’s damage should be actual and conclusive to meet the requirements for State compensation. If the registration of the right of lease of this case was not cancelled, Nonparty 4, who won the bid of this case, would be liable for the refund of the lease deposit against the Plaintiff. Thus, the Plaintiff first filed a claim for restitution of unjust enrichment against Nonparty 4 before filing a claim against the State for damages, and even if the damage was incurred, the Plaintiff may enforce the State’s liability for damages. However, the Plaintiff’s claim of this case is groundless.

(b) Markets:

(1) Whether an offense was committed

In the case of a lessee who has not acquired the opposing power, it is determined whether he can oppose the buyer on the basis of the time when the registration is made, but in the case of a lessee who has the opposing power prior to the registration of the right of lease, the effect of acquiring the opposing power already acquired continues to be maintained even if he/she fails to meet the requirements for opposing power after being registered pursuant to the order of lease registration. In such case, it is necessary to determine whether he/she can oppose the buyer on the basis of the time when he/she acquires the original opposing power

As seen earlier, the lease registration of this case was completed on May 14, 199, but the registration of this case was completed on December 12, 1996, which was before the completion of the registration of the establishment of the first and second-class mortgage in each of the first and second-class auction proceedings. The plaintiff demanded the distribution of the lease deposit, but did not receive KRW 56,267,69 out of the deposit deposit amount of KRW 60 million. As such, the plaintiff maintained opposing power against the balance of the lease deposit, and the registration of this case is not subject to entrustment for cancellation of the lease registration. Nevertheless, the auction court entrusted the cancellation of the lease registration of this case without confirming the distribution of the total amount of the lease deposit against the plaintiff. Thus, it is illegal to have caused the cancellation of the lease registration of this case.

(2) Whether the opposing power has expired

The purpose of the registration of the lease of a house is to maintain the opposing power of the king. As seen earlier, the registration of the lease of this case was cancelled by a wrong commission from an auction court even though the Plaintiff, who is a lessee, failed to receive the total amount of the lease deposit in the auction procedure, and there is no reason to assume the Plaintiff responsible for it, the opposing power already acquired by the Plaintiff, notwithstanding the cancellation of the registration of the lease of this case, shall be maintained.

(3) Whether the damage occurred

The claim for damages caused by a tort is established when the actual damage occurs, and whether the actual damage occurred shall be determined objectively and reasonably in light of social norms.

However, in the case of this case, even if the Plaintiff failed to receive the full amount of the deposit for lease in the second auction procedure, it is possible to seek the return of the balance of the deposit for lease against the transferee of the real estate in this case on the basis of opposing power, and it cannot be deemed that the damage equivalent to the deposit for lease which was not distributed in the second auction procedure has actually occurred. Therefore, the Plaintiff’s assertion

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted and the judgment of the court of first instance is revoked and the plaintiff'

［［별 지］ : 부동산 목록 생략］

Judges Masung Man (Presiding Judge) (Presiding Judge)