[부당이득금][공1994.4.15.(966),1083]
The meaning of Article 3-2 (2) of the Housing Lease Protection Act
In light of the purpose of the Housing Lease Protection Act for the protection of a lessee, a lessee who has preferential right to payment is entitled to receive a deposit from the value of a leased house in preference to other creditors, and at the same time, to order the object of lease. Therefore, Article 3-2(2) of the Housing Lease Protection Act provides that a lessee cannot receive a deposit from the proceeds of realizing leased house at the time of auction or public sale unless he/she delivers a leased house to the transferee of the leased house means that the lessee must prove that the lessee has ordered the leased house in order to receive the deposit in the process of auction or public sale, and the lessee’s obligation to perform the
Article 3-2 (2) of the Housing Lease Protection Act
Plaintiff
Defendant-Appellant Kim Jong-sung, Counsel for defendant-appellant
Seoul Civil District Court Decision 93Na23281 delivered on September 23, 1993
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
We examine the grounds of appeal.
1. Since the execution of distribution according to the distribution schedule which became final and conclusive does not confirm the rights under the substantive law, in case where a person who is liable to receive a distribution receives a distribution without receiving the distribution, the preferential creditor who did not receive the distribution has the right to claim the return of unjust enrichment, regardless of whether the person raised an objection to the distribution or whether the distribution procedure is confirmed in the form of the distribution (see, e.g., Supreme Court Decisions 86Meu2949, Nov. 8, 1988; 90Meu315, Mar. 27, 1990; 90Meu315, 32
The judgment of the court below to the same purport is just and there is no error of law such as theory of lawsuit.
2. After recognizing the facts of the judgment, the lower court determined that the Defendant’s obligation to return unjust enrichment amounting to KRW 8,000,000 to the Plaintiff and the Plaintiff’s obligation to surrender the instant building to the Plaintiff was concurrently performed, and ordered the Defendant to pay KRW 8,00,000 to the Plaintiff at the same time with the order of the Plaintiff to surrender the instant building part.
In light of the purpose of the Housing Lease Protection Act for the protection of lessee, lessee who has preferential right to payment is entitled to receive the deposit from the value of leased house in preference to other creditors and to order the object of lease at the same time.
Therefore, Article 3-2 (2) of the Housing Lease Protection Act provides that a lessee is unable to receive a deposit from the proceeds from the sale of leased house at auction or public sale without delivering the leased house to the transferee of the leased house means that the lessee is obliged to prove that the lessee has ordered the leased house in order for the lessee to receive the deposit during auction or public sale, and the tenant's name of the leased house is not required to be fulfilled in preference to the obligation to return
The court below is just in holding that the defendant's obligation to return the remaining deposit amount of 8,000,000 won to the plaintiff and the obligation to explain the part of the building of this case to the plaintiff are concurrently performed. There is no error in the misapprehension of legal principles as to the theory of lawsuit, and therefore there
Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Chocheon-sik (Presiding Justice)