부당이득금반환등
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
1. The following facts can be acknowledged, either in dispute between the parties or in full view of the purport of the entire pleadings in each entry in Gap evidence Nos. 1 to 6:
On May 9, 2014, the Plaintiff completed the registration of the establishment of a reinforced concrete structure (refinite) with respect to the fourth 501 of the fourth story apartment units (refinite) among the five-story apartment units (refinite concrete roof units) owned by B, on May 9, 2014, with a maximum debt amount of KRW 130 million as the debtor D, the mortgagee, and the maximum debt amount.
B. On June 18, 2015, upon the Plaintiff’s request, the Daegu District Court rendered a voluntary decision to commence the auction of the instant housing E, and on the same day, the registration of the said decision to commence the auction was entered.
(The auction procedure based on the above decision on commencing auction is hereinafter referred to as the “instant auction procedure”).
On February 17, 2016, on the date of distribution opened on February 17, 2016, a distribution schedule (hereinafter “instant distribution schedule”) was drawn up, which distributes the amount of KRW 15 million to the Defendant (an order of priority in the distribution of small tenants), and KRW 63,310,175 to the Plaintiff (an applicant creditor, and the second order).
On the other hand, on April 5, 2014, F leased the instant housing as KRW 20 million, monthly rent, and KRW 600,000,000 from B, and on May 13, 2014, F made a move-in report on the instant housing.
On January 3, 2015, F resided in the instant house and sub-leaseed two partitions to the Defendant on January 3, 2015, under the condition that he/she would jointly use a sub-lease deposit of KRW 15 million, monthly rent of KRW 400,000,000, monthly rent of KRW 400,000, and obtained the consent of the lessor B as to the sub-lease on January 6, 2015.
The Defendant resided in the instant house from January 27, 2015, and moved to the instant house on July 7, 2015.
2. The assertion and judgment
A. The plaintiff's assertion cannot be viewed as a tenant with opposing power or preferential right to payment, and since the former lessee is the former, the amount of KRW 15 million distributed to the defendant in the first order shall be the full amount of the plaintiff.