[배당이의][공1998.1.15.(50),267]
When a preferential payment right under Article 3-2 (1) of the Housing Lease Protection Act occurs;
Article 3(1) of the Housing Lease Protection Act provides that the opposing power shall take place from the day after delivery and resident registration shall take place, unlike India and resident registration, because it is a simple method of publication different from India and resident registration, and it is practically difficult to determine senior right holder by clarifying the transfer and resident registration in case where the registration in the name of a third party is made on the same day. However, even if the third party is confirmed that no lessee has completed delivery and resident registration, and the third party has completed the registration, the purport of having the lessee take precedence over the lessee in order to prevent any unexpected damage that the lessee may suffer due to the termination of delivery and resident registration. The preferential repayment under Article 3-2(1) of the Housing Lease Protection Act is a real right effect against the third party of the housing lease, as well as the opposing power, and there is no reasonable ground to regulate the priority between the lessee and the third party, and if the fixed date as referred to in Article 3-2(1) of the Act is obtained on the same day or before the date of resident registration, the preferential repayment shall take effect on the basis of the date
Articles 3 (1) and 3-2 (1) of the Housing Lease Protection Act
Korea Housing and Commercial Bank
Defendant (Attorney Lee Han-soo et al., Counsel for the defendant-appellant)
Daejeon District Court Decision 97Na704 delivered on May 9, 1997
The appeal is dismissed. The costs of appeal are assessed against the defendant.
Article 3(1) of the Housing Lease Protection Act (hereinafter referred to as the "Act") provides that even if a lease has not been registered, it shall be effective for a third party from the following day when the tenant completes the delivery of a house and resident registration, and in this case, it shall be deemed that the tenant has the resident registration at the time of the moving-in report. Article 3-2(1) of the Act provides that the tenant who has the requisite to set up against the tenant and the fixed date on the lease agreement document has the right to be paid the deposit in preference to junior creditors or other creditors from the proceeds from sale through auction, etc. The provision that Article 3(1) of the Act provides that the tenant shall have the right to be paid the deposit in preference to junior creditors or other creditors. The above provision provides that the opposing power shall take place on the date following the date of delivery and resident registration, unlike the one on which the delivery and the third party's name are registered, it is practically difficult to determine the senior right holder on the date of the first priority of the transfer and the third party's resident registration.
In the same purport, the court below is just in holding that the order of priority of the defendant should be determined on the 17th day of the same month, the following day after the moving-in and moving-in report was made with the non-party Construction Co., Ltd. on September 15, 1994 and the moving-in report was made on the 16th day of the same month after the moving-in and moving-in report was made, and the plaintiff was made on the same day, and the order of priority should be determined on the 17th day of the same month, and the plaintiff should be paid preferentially from the auction proceeds as the right holder above the defendant. There is no error in the misapprehension of legal principles as to Article 3-2 (1) of the
Therefore, the appeal is dismissed, and the 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 Cho Chang-hun (Presiding Justice)