Plaintiff

Korean Bank, Inc.

September 16, 2005

Changwon District Court Decision 2005Kadan83 decided May 13, 2005

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

Of the distribution schedule prepared on December 30, 2004 by the above court with respect to the auction case of real estate rent in the Changwon District Court, the amount of dividends to the defendant shall be 713,802,262 won, 708,802,262 won, and the amount of dividends to the plaintiff shall be corrected to five million won, respectively.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

A. On July 14, 1995, the Plaintiff entered into a lease agreement with Gyeongsung-gun Co., Ltd. (hereinafter referred to as the “Songnam-gun Housing Construction”) by setting the lease deposit of KRW 1,2.6 million, monthly rent of KRW 21,00,00, and the lease term of KRW 2 years, and completed the move-in report on the resident registration on November 19, 194, under the delivery of the instant apartment.

B. On February 8, 200, the Plaintiff sent out a document verifying the contents of a contract demanding the return of the lease deposit to the housing construction for the reason of the expiration of the lease term, and entered into a sub-lease contract with Nonparty 1 on March 11, 200 with respect to the apartment of this case with a deposit of KRW 10 million. On April 17, 2000, the Plaintiff changed the resident registration to the Jinju-si (detailed number omitted). On April 10, 200, Nonparty 1 made a move-in report with Nonparty 2 as the head of the household on April 10, 200, but completed the move-in report with his head of the household on January 10, 202.

C. Meanwhile, the Defendant, as a mortgagee of the foregoing (name omitted), apartment A, and B, filed an application for the auction of real estate rent at Changwon District Court 2003 Mata8505, Jun. 27, 2003, the auction of real estate was commenced on June 27, 2003. In the above auction procedure, the Plaintiff filed a report of the right and a demand for distribution with the lessee who leased the apartment of this case at KRW 12.6 million, but the Plaintiff submitted a report of the right and a demand for distribution on December 30, 204, on the first priority of the amount to be actually distributed on December 30, 204, at KRW 1,023,802,262, the date of distribution, as well as KRW 5 million, and the second priority of the distribution was distributed to the Defendant, who is the applicant creditor and the second priority, and the Plaintiff was excluded from the said distribution.

【Ground of recognition】Non-contentious facts, entries in Gap evidence 1 through 5 (including each number), and the purport of the whole pleadings

2. The assertion and its judgment

A. The plaintiff's assertion

The plaintiff asserts that since the plaintiff should have a director in Jin-si after the expiration of the lease term for the apartment of this case, the plaintiff sublet the apartment of this case to the non-party 1 under the implied consent of the housing construction, which is the lessor, and the non-party 1 moved in the apartment of this case and completed the moving-in report for resident registration, the plaintiff maintains the status as a small-sum lessee with the right to preferential payment under Articles 8 and 3(1) of the Housing Lease Protection Act. Thus, the plaintiff asserts that five million won out of the total amount of KRW 713,802,262 distributed to the defendant should be distributed to the plaintiff.

B. Determination

In case where a housing lessee who has opposing power under Article 3 (1) of the Housing Lease Protection Act transfers or subleases a right of lease lawfully with the consent of a lessor, if the transferee or the lessee completes the moving-in report within the period of moving-in report under the Resident Registration Act from the date of moving-in registration of the lessee to the expiration of the lease term, and continues to occupy the house after taking possession of the house, even if the possession and the resident registration was changed due to the above transfer or sub-lease, the opposing power of the lease originally owned by the lessee shall not be extinguished and shall continue to exist without maintaining identity (see, e.g., Supreme Court Decision 87Meu2509, Apr. 25, 198). The above lessor’s consent is not related explicitly or implicitly, but in this case, as to whether the Plaintiff obtained the consent on the sub-lease from the Housing Construction in the case, it is difficult to view that the Song Forest Housing Construction without any reply from the Plaintiff to the return of the deposit after the expiration of the lease term due to the expiration of the lease term.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance is unfair with different conclusions, and it is so decided as per Disposition by the court of first instance to revoke it.

Judges Lee Sung-ho (Presiding Judge)