The defendant shall pay to the plaintiff 7 million won with 5% interest per annum from February 16, 2006 to May 28, 2008, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. One-half of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. The portion paid with the amount under paragraph (1) may be provisionally executed.

The following facts are not in dispute between the parties, or can be acknowledged in full view of the contents of Gap evidence 1 through 3, Eul evidence 1 through 5, the fact inquiry of new 4 head of the court of first instance, and the whole purport of the arguments as a whole.

A. The National Bank Co., Ltd. (hereinafter “National Bank”) completed the registration of the establishment of a new apartment Nos. 2 of the Daegu-gu, Dongcheon-gu, Daegu-dong (Sacheon omitted), which was owned by Nonparty 1 (hereinafter “the apartment of this case”), with the maximum debt amount of KRW 58,50,000, the debtor Nonparty 1 and the National Bank of Korea as the debtor non-party 1 and the mortgagee of the right to collateral security as the Daegu District Court No. 41737, Sept. 12, 2002.

B. On February 12, 2005, the Plaintiff entered into a lease contract with Nonparty 1 by setting the lease deposit of KRW 14,000,000 for the instant apartment and the lease period from February 25, 2005 to February 25, 2007. On March 2, 2005, the Plaintiff completed the move-in report to “fourth-story 2,” which is the domicile on the registry of the instant apartment, and obtained a fixed date on the same day.

C. After that, on May 26, 2005, the National Bank, the mortgagee of the right to collateral security, obtained a voluntary decision to commence the auction of the apartment of this case from the Daegu District Court 2005Tgu District Court around 31262, and completed the voluntary decision to commence the auction as the Daegu District Court No. 23550, Jun. 1, 2005, which received on June 1, 2005.

D. Nonparty 2 received an order from an auction court to investigate the current status of the instant apartment on June 2, 2005, and visited the site of the instant apartment on June 9, 2005, and investigated the lease relationship. At the competent new 4-dong office, Nonparty 2 inspected the household with respect to “402,” which is the actual management number of the instant apartment, rather than the number of the units on the registry of the instant apartment, and without further investigation, prepared a report on the current status of the real estate, stating the following, without any further investigation.

○ Place of investigation: Location of real estate

○ Method of Investigation: On-site trip

○ Possession of real estate

The location of the actual tax: Daegu Metropolitan City New-dong (number omitted) 00 apartment 4 2.2

Does other: The lease documents shall not be submitted and shall not be transferred as a result of the confirmation of the office.

E. On August 23, 2005, the Plaintiff transferred the instant apartment from the instant apartment without knowing that the auction was in progress, and made a move-in report from the instant apartment to the new-dong, Yeongdeungpo-gu, Seoul. On August 25, 2005, the Plaintiff, the mother of the Plaintiff, made a move-in report with the “402” as its address on the instant apartment on August 25, 2005.

F. Meanwhile, in the above real estate auction case, the auction court set the period for demand for distribution until August 24, 2005, and thereafter, the apartment of this case was sold to Nonparty 4 on December 26, 2005, and the above court, on February 15, 2006, prepared a distribution schedule with the content that, on the date of distribution, the amount of KRW 47,600 was distributed to the head of Daegu Metropolitan City Dong-gu, Daegu Metropolitan City in the first order, and the amount of KRW 35,948,188 in the second order to the National Bank.

G. On the date of distribution, the Plaintiff appeared on the date of distribution and raised an objection against KRW 14,00,000 out of the amount of dividends to the national bank. On February 21, 2006, the Plaintiff filed a lawsuit of demurrer against the distribution against the national bank. However, on May 30, 2007, the judgment against the Plaintiff lost its opposing power under the Housing Lease Protection Act on the ground that the Plaintiff lost its opposing power by transferring it before the date of distribution demand.

2. Determination

A. Establishment of liability for damages

1) The matters to be examined by the enforcement officer in a survey on the current status is the current status of real estate, possession relation, amount of rent or deposit, and other current status (Article 85(1) of the Civil Execution Act). Among them, in relation to lease relations, ① In the event that the use of leased object, the number of Dongs and units on the resident registration, and the number of Dongs and units on the resident registration, and the number of units on the resident registration, ② the contents of lease (the lessee’s name, deposit, lease deposit, lease period, fixed date, etc.), ③ in the event there are several lessees on the sold real estate, it is a common method to investigate the current status of lease and entry of each lessee and his/her family where the sold real estate is a house, and to attach a copy or abstract of resident registration, etc. on the head of the household at the location of the house, the current status of the registered matters on the whole lessee in the case of a commercial building, and a copy or copy of building drawings.

2) However, according to the above facts, the number of Dongs and units on the registry and resident registration of the apartment of this case is "fourth-story 2," and the actual management number is "402," and an execution officer ordered to investigate the lease relationship of the apartment of this case is subject to an order to investigate the present status of the apartment of this case by clearly ascertaining the actual Dong and units, the number of Dongs and units on the resident registration, and the number of Dongs and units on the registry in the investigation of the lease relationship of the apartment of this case, and by inspecting the resident registration with "fourth-story 2," the number of units and units on the registry (the indication of the above auction subject matter also consists of "fourth 2," hereinafter) on the resident registration, after investigating the contents of the lease agreement of the plaintiff moving-in as "fourth 2," on the resident registration and being attached with the copy and abstract of the plaintiff's resident registration, the act of failing to report the present status of the apartment of this case as an execution officer's act of violation of the obligation to investigate the present status of the apartment of this case.

3) In addition, according to the evidence as seen earlier, in the above auction case, the plaintiff did not demand a distribution until the completion period of demand for distribution, and as a result, the plaintiff did not receive a small-sum lease deposit due to the plaintiff's transfer, but did not know that the auction for the apartment of this case was in progress, and if the execution officer confirmed that the plaintiff was a move-in report for the apartment of this case and entered this content in the report on the investigation of current status, the auction court notified the plaintiff of the fact that the auction was in progress on the leased object and the content of guiding the plaintiff to demand a distribution. The plaintiff notified of such fact that the auction court maintained the resident registration by August 24, 2005, the completion period of demand for distribution, and it would be in accordance with the ordinary rule of experience. Therefore, there is a proximate causal relation between the illegal act of the execution officer and the damage suffered by the plaintiff.

B. Limitation on liability

However, the plaintiff was aware that there was a danger of entering an auction at any time due to the completion of several registrations of seizure, provisional seizure or collateral security registration for the apartment of this case at the time of the conclusion of the lease contract, and thus, the plaintiff has lost opposing power by failing to peruse the register at any time. ② Even if a small-sum lessee meeting the requisite for opposing power is a lessee, he may receive a distribution to the auction court, and such demand for distribution shall be made on his own responsibility. As such, regardless of whether he is investigated and reported as a result of the investigation by the execution officer, he shall demand a distribution to the court of execution, regardless of whether he is a lessee, and the notification of the progress of the auction procedure to the housing lessee is made only for the convenience of the parties, and ③ the execution officer visited the plaintiff's domicile twice, but did not only the plaintiff or his family members, even if the plaintiff suffered any damage due to the negligence of the execution officer, it is against the principle of fair sharing and equity in the damages. Therefore, the defendant's liability ratio is limited to 50%.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 7 million won (14 million won x 0.5) and damages for delay calculated at the rate of 5% per annum under the Civil Act from February 16, 2006, which is the date following the date of distribution to May 28, 2008, and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment, as requested by the plaintiff, to the plaintiff, as the part against the plaintiff corresponding to the above amount to be paid as above in the judgment of the court of first instance which is unfair, since it is judged that it is reasonable for the defendant to dispute about the existence or scope of the obligation to pay, and as such, the remaining part of the plaintiff's appeal is revoked partially and it is dismissed as it is so decided as per Disposition.

Judges Cho Chang-chul (Presiding Judge)