Whether the assignee of a claim who takes over only the claim for return of the deposit for lease from a lessee who has the right to preferential payment under the Housing Lease Protection Act constitutes a tenant who can exercise the right to preferential payment under the Housing Lease Protection Act (negative)

In light of the legislative purpose of the Housing Lease Protection Act, the purport of the system that recognizes the right to preferential payment of the deposit returned by the lessee of a house, and the language and text of the relevant provisions under the Housing Lease Protection Act, even if the transferee of a bond takes over the claim for return of the deposit for lease from a lessee of a house who is entitled to exercise the right to preferential payment, so long as the transferee of the claim takes over only the claim for return of the deposit for lease, which is separate from the right to preferential payment from the right to lease, it cannot be deemed as a lessee entitled to exercise the right to preferential payment under the Housing Lease Protection Act. Therefore, the aforementioned obligation transferee cannot demand a distribution in the status of the right to preferential payment under the Housing Lease Protection Act in the auction procedure for a leased house, and the same applies to the case where the transferee of a

Articles 3 (1) and 3-2 (2) of the Housing Lease Protection Act

Hyundai Switzerland Mutual Savings Bank, Inc.

Korea Standards Bank, Inc., and 2 others

Seoul Southern District Court Decision 2009Na7941 Decided December 10, 2009

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff.

We examine the grounds of appeal.

1. The legislative purpose of the Housing Lease Protection Act is to guarantee the stability of the residential life of citizens by prescribing special cases concerning the Civil Act concerning residential buildings. In Article 3(1) of the Housing Lease Protection Act, even in cases where no registration is made, the lease of a house takes effect against the third party from the following day when the lessee completes the transfer of the house and resident registration, and the purpose of allowing the lessee to be paid the lease deposit in preference to the junior right holder or other creditors at the time of auction or public sale, who has the requirements for counterclaim under Articles 3-2(2) and 3(1) of the Housing Lease Protection Act and the fixed date on the lease agreement, arises from social security consideration to protect the

In light of the legislative purpose of the Housing Lease Protection Act, the purport of the system that recognizes the right to preferential payment of the deposit for lease of a housing lessee, and the language and text of the relevant provisions under the Housing Lease Protection Act, even if the transferee of a bond takes over the deposit for lease from a housing lessee who is entitled to exercise the right to preferential payment, so long as the transferee of the bond takes over only the claim for return of deposit for lease, which is separate from the right to preferential payment

Therefore, in the auction procedure for a leased house, the transferee of the above bonds cannot demand a distribution in the position of the person with preferential right to payment under the Housing Lease Protection Act, and this also applies to the case where the transferee of the bonds takes over the claim for return of the leased deposit from the lessee for the purpose of securing other claims. However, in such a case, the transferee of the bonds can demand a distribution by satisfying the requirements as a general

2. citing the reasoning of the judgment of the court of first instance, the court below rejected the Plaintiff’s assertion on the ground that the Defendants received the claim for refund of lease deposit from the Nonparty, a housing lessee, who had already met the requisite for setting up a fixed date prior to acquiring a mortgage regarding the Seoul Yangcheon-gu Village 3 Complex Apartment 301 and 102 (hereinafter “the instant real estate”) prior to acquiring a mortgage on the right to lease deposit, it is apparent in the text that Article 3-2(2) of the Housing Lease Protection Act recognizes the right to preferential payment as to the lease deposit only to the lessee of a residential building, and there is no circumstance that the Plaintiff is merely the ordinary monetary party who acquired the right to return the lease deposit from the Nonparty, and that the Plaintiff is the lessee of the instant real estate or the Plaintiff was taking over the right to preferential payment from the Nonparty as the exercise of the right to subrogation, and further, the Plaintiff did not have a claim for refund of lease deposit by subrogation of the Nonparty and did not have a right to preferential payment under the Housing Lease Protection Act.

3. Therefore, all appeals are 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 Lee Hong-hoon (Presiding Justice)