[1] In a case where a lessee who has both opposing power and preferential right to payment demand a distribution but fails to receive the total amount of deposit, whether the successful bidder can make a defense of simultaneous performance as to the balance (affirmative)

[2] In a case where a lessee who has both opposing power and preferential right to payment demand a distribution but fails to receive the total amount of the deposit, whether he/she may exercise preferential right to payment at the auction procedure based on the right to collateral security which has been newly made after the successful bid (negative)

[1] In case where a lessee, who concurrently has two opposing power and preferential rights under the Housing Lease Protection Act, requests a distribution of the entire amount of the deposit in an auction procedure under progress for the leased house, but the order of priority is delayed, and the entire amount of the deposit could not be distributed, the lessee may claim the continuation of the lease relationship until the successful bidder files a claim against the successful bidder for the remainder which remains after deducting the amount of the deposit which could have been distributed from the auction procedure. In this case, the lease relationship is deemed to exist until the lessee receives a refund of the deposit amount under Article 4(2) of the Housing Lease Protection Act. However, the lease relationship is deemed to exist until the lessee receives a refund of the deposit amount under Article 4(2) of the same Act, and the successful bidder succeeds to the status of the lessor at the time of termination of the lease under Article 3(2) of the same Act and the right to preferential payment

[2] As long as the lease contract is terminated by a tenant with opposing power and preferential right to payment in the auction procedure on a leased house, and the house is knocked out, the successful bidder is the previous owner who was in the status of a floating lessor and the lessee continues to reside in the relevant house without receiving any distribution at all because he/she was a subordinate right holder, there is no right to receive preferential payment from the successful bidder at the auction procedure based on the registration of the establishment of a neighboring mortgage newly completed regarding the relevant house, but only he/she can claim the continuation of the lease relationship until the successful bidder is returned the lease deposit.

[1] Articles 3(2), 3-2(1), 4(2), and 8(2) of the Housing Lease Protection Act / [2] Articles 3(2), 3-2(1), 4(2), and 8(2) of the Housing Lease Protection Act

[1] Supreme Court Decision 96Da53628 delivered on August 22, 1997 (Gong1997Ha, 2793), Supreme Court Decision 97Da1195 delivered on August 29, 1997 (Gong1997Ha, 2856)

Gyeongnam Bank Co., Ltd. (Attorney Cho Jong-soo, Counsel for the plaintiff-appellant)

Defendant (Attorney Kim Sung-sung, Counsel for defendant-appellant)

Busan High Court Decision 97Na4517 delivered on December 12, 1997

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

When a lessee, who has both opposing power and preferential right to payment under the Housing Lease Protection Act, concurrently claims a distribution of the entire amount of the deposit in an auction procedure where the lessee has selected a preferential right to payment and is proceeding with the leased house, but the order of priority is delayed, and the entire amount of the deposit could not be distributed, he/she may claim the continuation of the lease relationship until the successful bidder claims a refund of the deposit, as regards the remainder remaining after deducting the amount of the deposit which could have been distributed from the auction procedure. In such cases, the lease is terminated by the lessee's demand for distribution, and the lease relationship is deemed to exist until the lessee redeems the balance of the deposit under Article 4 (2) of the same Act, and the successful bidder succeeds to the status of the lessor at the time of termination of the lease under Article 3 (2) of the same Act, and the lessee's preferential right to payment ceases to exist due to the auction (see Supreme Court Decision 96Da53628, Aug. 22, 199).

In the same purport, the court below is just in holding that the lease contract of this case was terminated by the defendant, who is the lessee with opposing power and preferential right to payment, to demand a distribution of the deposit in the auction procedure for the housing of this case, and since the housing of this case was knocked, the successful bidder is the previous owner who was in the status of Mad lessor, and the defendant continued to reside in the housing of this case without receiving any distribution at all as subordinate right holder, and there is no right to receive a preferential repayment from the successful bidder at the auction procedure for the registration of the establishment of a neighboring mortgage newly completed concerning the housing of this case, but it is only possible to claim the continuation of the lease relationship until the successful bidder is returned the lease deposit, and there is no error of law in the misapprehension

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)