Whether to recognize preferential payment right to the lease deposit of unregistered housing lessees with requirements for counterclaim and a fixed date;

Unless other special provisions exist, the right to preferential payment to the lease deposit of unregistered housing lessees with requirements for counterclaim and a fixed date is subject to the same law, as there are no special provisions dealing with unregistered housing differently.

Collection of 2 deposit under Article 3 of the Housing Lease Protection Act

Protection of a certain amount of deposit under Article 8 of the Housing Lease Protection Act

1. With respect to the compulsory auction case of real estate at ○○○○○○○○○○ court 000 000, the above court revoked each part of the distribution schedule prepared on November 7, 2006 against Defendant ○○○○○○○○○, Defendant Republic of Korea ○○○○○○, Defendant ○○○○ Tax Office, ○○ Tax Office, ○○○ Tax Office, and Defendant Kim Young-si, and ordered the above court to re-establish the distribution schedule and implement new distribution procedures.

2. The costs of lawsuit are assessed against the Defendants.

Cheong-gu Office

Of the dividend table prepared on November 7, 2006 by the above court, 4,705,222 won for the compulsory auction case of real estate 000 00 00 00 , 134,284,504 won for the defendant's Republic of Korea as the dividend amount of 116,735,463 won for the defendant's Republic of Korea as 124,542,714 won for the dividend amount of 116,735,463 won for the defendant's Republic of Korea as the dividend amount of 108,26,784 won for the 00 00 00 00 00 00 , 8,205,228 won for the dividends amount of 7,609,972 won for the 00 00 00 00 00 00 00 00 00 06,005 06 364,65 00

1.Basics

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the entire pleadings in each of the evidence Nos. 1, 2, 4 through 7, and 8-1, 2, 9, and 10.

(a) A lease contract for unregistered buildings;

(1) Defendant Kim Jong-dong (hereinafter “instant building”) constructed multi-household housing (hereinafter “instant building”) under one’s name on the ground of 000-0 01 m2, ○○-dong, ○○○-dong, ○○○-dong, 000, and 101 m2 (hereinafter “instant land”), which is one’s own ownership, but did not undergo a completion inspection and did not lease it to another person.

(2) On May 11, 2002, the Plaintiff entered into a lease contract with Defendant Kim Jong-tae to rent KRW 45,000,000 as deposit money of KRW 45,00,00, and paid the down payment of KRW 4,500,000, the Plaintiff received a move-in report for resident registration and received a fixed date on the lease contract. The Plaintiff paid the remainder of KRW 40,50,000 on June 31, 200, and received the said house. As of June 4, 2002, the Plaintiff continued to reside in the said house as well as on June 2, 2003, and transferred the resident registration to ○○○○-dong 00-00.

(3) 한편, 원고 이외에도 김☆☆ 박▼▼, 이■ 등이 피고 김□□으로부터 이 사건 건물의 일부를 각 임차하여 거주하고 있었다.

(b) Provisional registration of the establishment registration of neighboring mortgage and ownership transfer claim;

피고 김□□은 이 사건 토지에 관하여 김★★을 근저당권자로 하는 채권최고액 70,000,000원의 서울중앙지방법원 동작등기소 2001. 5. 18. 접수 제 20684호 근저당권 설정등기를, 오○○을 권리자로 하는 서울중앙지방법원 동작등기소 2003. 10. 9. 접수 제 49971호 소유권이전청구권가등기를 각 경료하였다.

C. Compulsory auction for the land of this case

(1) On August 3, 2005, the ○○○○○○○○ court, 000 tea 000,0000, the ○○○○○○○○○○○ court filed an application for a compulsory auction on the instant land by means of an executory payment order certified copy of the claim for return of lease deposit. The Plaintiff submitted a demand for distribution on November 11, 2005. In addition, the ○○○ requested the distribution of the said claim for ownership transfer amounting to KRW 125,00,000 as the secured claim for the said claim for ownership transfer registration, and interest KRW 13,989,726 as the secured claim.

(2) 위 경매절차에서 이 사건 토지는 2006. 6. 27. 한▲▲ 등 5인에게 275,100,000원에 매각되었고, 경매법원은 2006. 11. 7. 배당기일을 열어 낙찰대금에서 집행비용 등을 공제한 나머지 272,476,454원을 실제 배당할 금액으로 확정한 다음, 먼저 1순위로 근저당권자인 김★★에게 70,000,000원을, 2순위로 가등기권자인 오○○에 대한 조세채권자들인 피고 ○○○○○에 4,705,222원, 피고 대한민국 ○○세무서에게 116,735,463원, 피고 대한민국 ○○세무서에게 8,205,228원, 피고 대한민국 ○○세무서에게 9,343,813원을, 3순위로 채권자인 이■에게 28,569,863원을, 4순위로 소유자인 피고 김□□에게 잉여금 34,916,865원을 각 배당하는 내용의 배당표(이하 '이 사건 배당표'라 한다)를 작성하였다.

(3) 원고 및 김☆☆, 박ʘʘ, 박★★은 배당기일에 출석하여 이 사건 배당표의 2 내지 4순위 배당액 중 각 임차인들의 확정일자를 받은 보증금에 해당되는 금액에 대하여 이의를 진술하였고, 피고 김□□은 이 사건 배당표 중 2순위 배당액 전액에 대하여 이의를 진술하였다.

2. The assertion and judgment

A. The plaintiff's assertion

주택임대차보호법에 의하면 대항요건과 확정일자를 갖춘 임차임은 임차주택의 매각대금 뿐만 아니라 대지의 매각대금에서도 우선변제를 받을 수 있고, 임차주택의 대지만에 대한 경매가 진행된 경우에도 대지의 매각대금에서 우선변제를 받을 수 있으며, 주택임대차보호법의 입법취지 등을 종합해 볼 때 미등기주택의 확정일자 있는 임차인에게도 위와 같이 대지 매각대금에 대한 우선변제권을 인정할 수 있다. 원고는 확정일자를 받고 전입신고와 주택 인도를 받은 다음날인 2002. 6. 1. 우선변제권을 취득하여 가등기권자인 오○○보다 우선하는 채권자이므로, 이 사건 배당표의 배당액 272,476,454원에 대하여 1순위로 김★★에게 70,000,000원, 2순위로 원고에게 45,000,000원, 3순위로 이■에게 28,569,863원을 각 배당하고 남은 128,906,591원을 4순위인 피고 ○○○○○, 피고 대한민국 ○○세무서, ○○세무서, ○○세무서의 채권비율에 따라 피고 ○○○○○에 4,363,877원, ○○세무서에 108,266,784원, ○○세무서에 7,609,972원, ○○세무서에 8,665,958원을 각 배당하여야 한다.

B. Determination

Article 3-2(2) of the Housing Lease Protection Act provides that a lessee who satisfies the requirements for counterclaim under Article 3(1) and the fixed date stated in a lease agreement document shall have the right to be paid a security deposit in preference to junior creditors and other creditors from the proceeds from the sale of the real estate at auction under the Civil Execution Act or a public auction under the National Tax Collection Act shall include the proceeds from the sale of the real estate as well as the proceeds from the sale of the real estate. Article 8(1) of the same Act provides that a lessee who satisfies the requirements for counterclaim shall have the right to be paid a certain amount of the security deposit (hereinafter referred to as "small amount security deposit") prior to other secured creditors. Article 3-2(2) of the same Act provides that the scope and standards of the small amount of the security deposit and the small amount of the security deposit shall be set within the limit of one half of the value including

Therefore, a lessee and a small-sum lessee with requisites for counterclaim and a fixed date may exercise preferential right to payment from the proceeds of the sale of a leased house and its site, as well as from the auction of the leased house, even if only the site is sold separately from the leased house, and such preferential right to payment is recognized to protect a lessee based on the value of the leased house and the site, which is the object leased at the time of the establishment of the lease. Therefore, the same applies to cases where the land owned by the lessor was transferred to another person at the time of the establishment of the lease and the owner of the leased house

The purpose of this Act is to ensure the stability of the residential life for the people by providing for special cases concerning the Civil Act with respect to the lease of a house (Article 1), and does not distinguish whether a leased house is a building permitted by the competent authority or a building completed a registration (Article 2). As long as a building constitutes a house used for the purpose of the residential life for the people, it is reasonable to interpret that a building is subject to the same Act unless there are other special provisions, even if there are no special provisions regarding the building yet or registration is not completed.

However, Articles 3-2 and 8 of the same Act, which recognize the right to preferential reimbursement to the lessee and the lessee with the requisite for setting up against the tenant and the fixed date, do not have any special provision that treats unregistered houses. Thus, the legal doctrine on the right to preferential reimbursement to the leased housing site of the lessee and small-sum lessee with the aforementioned requisite for setting up against the tenant and the fixed date shall be deemed to apply to cases where the leased house is unregistered (see Supreme Court Decision 2004Da26133, Jun. 21, 2007).

According to the above, the plaintiff was deemed to have been the owner of the land of this case and had the ownership of the building of this case by leasing the third floor of the building of this case from the defendant Kim Young-si, which seems to have been the original owner of the building of this case, and thereafter the plaintiff continued to reside together with the husband of this case, and the Kim Jong-il also recognized the fact that the plaintiff transferred the building of this case and the resident registration of this case. The resident registration under Article 3 (1) of the Housing Lease Protection Act includes not only the tenant but also his spouse's resident registration (see, e.g., Supreme Court Decision 87Meu14, Oct. 26, 1987). Thus, the plaintiff shall be deemed to have satisfied the requirements for counterclaim and the fixed date under Article 3 (1) of the Housing Lease Protection Act. In the auction procedure for the land of this case, the plaintiff can receive the lease deposit in preference to the proceeds from the sale of the land of this case.

Therefore, it is unfair to distribute the same amount as the instant dividend table to Defendant ○○○○○○, Defendant Republic of Korea ○○○○○○, ○○○ Tax Office, ○○ Tax Office, and Defendant Kim Young-chul, and to not distribute all the dividends to the Plaintiff. As such, the part of the instant dividend table should be revoked and the amount to be distributed for each of them should be determined. However, as recognized earlier, it is inappropriate to determine the creditors entitled to receive dividends in this case and their amount in each of the instant cases, where the instant case, which is the lessee of the instant building, is still pending, and the Defendant Kim Young-ri and the instant case, which is a lessee of the instant building, is an objection against the distribution of the instant building, is still pending (Article 157 of the Civil Execution Act). Therefore, it is reasonable to make the said court a new dividend table

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.