Whether a successful bidder of an object constitutes a transferee under Article 3 of the Housing Lease Protection Act due to the exercise of a mortgage established after the right to lease the house that has acquired the opposing power after the establishment of the mortgage in the first instance (negative)

In the event that the subject real estate is knocked out due to the execution of subordinated mortgage and the senior mortgage is extinguished together, even if the right of lease that can be set up against the junior mortgagee exists, the right of lease that is registered after the senior mortgage is extinguished or has opposing power is extinguished together. Therefore, in such a case, the successful bidder shall not be included in the assignee of the leased house as prescribed in Article 3 of the Housing Lease Protection Act, so the right of lease cannot be asserted against the successful

Article 3 of the Auction Act, Article 3 of the Housing Lease Protection Act

Plaintiff

Defendant

Suwon District Court Decision 86Na189 delivered on July 11, 1986

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

According to Article 3 of the Auction Act, the right existing on the real estate which is the object of auction is extinguished due to the full payment of the auction price, and in the case of mortgage, the right registered earlier than the auction price is extinguished. Therefore, in case where the real estate which is the object of auction is sold at auction due to the execution of subordinated mortgage and the senior mortgage is extinguished at the same time, even if the right of lease which can be asserted against the subordinated mortgagee is extinguished, it is reasonable to interpret that the right of lease which is registered later than the extinguished senior mortgage is extinguished at the same time. Therefore, in this case, the successful bidder is not included in the assignee of the leased house as stipulated in Article 3 of the Housing Lease Protection Act, so the right of lease cannot be asserted against the successful bidder

According to the facts established by the court below, the plaintiff paid the successful bid price on the real estate of this case by auction conducted by the mortgagee 2, and the defendant paid the successful bid price on the housing lease protection act before the second mortgagee, but the tenant with opposing power under the Housing Lease Protection Act was a tenant prior to the second mortgagee. However, the successful bid real estate was registered at the first time before the defendant had opposing power under the Housing Lease Protection Act, and the first time mortgage was also extinguished due to the successful bid. Thus, the judgment of the court below that the defendant cannot assert the effect of the right of lease against the plaintiff who is the successful bidder, is legitimate, and there is no error of law by misapprehending the legal principles under Article 3 of the Housing Lease Protection Act,

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 judges.

Justices Lee B-soo (Presiding Justice)