Whether the holder of the right to lease registration registered in the real estate auction procedure shall demand a distribution (negative)

The status of the fixed lessee who has the right to preferential payment in the auction of real estate has the right to preferential payment registered in a position similar to the real estate mortgagee and the right to preferential payment in the auction of real estate. The registered right to lease is, in principle, extinguished by the successful bid of the leased house in a case where an auction has been conducted on the leased house under the Civil Execution Act. In addition, the right to lease on a deposit basis among the right to lease on a deposit basis, which is the best right to oppose the mortgage, seizure and provisional seizure under the Civil Execution Act, shall be extinguished by sale only when the right holder makes a demand for distribution regardless of whether the duration under the substantive law has expired (proviso of Article 91(4) of the Civil Execution Act). The right corresponding thereto is interpreted as necessary even if the first decision to commence the auction has been registered before the first decision to commence the auction, and there is no express provision as above. Lastly, in full view of the fact that the registered right to lease is an institution to guarantee the lessee’s right and interest by guaranteeing the lessee’s opportunity to freely move his residence, etc.

Articles 3-3 (5) and 3-5 of the Housing Lease Protection Act, Articles 88 and 91 (4) of the Civil Execution Act

Maximumness

Korean Bank, Inc.

July 29, 2004

1. Of the distribution schedule prepared by the above court on March 2, 2004 with respect to the auction case of real estate rent in Gwangju District Court 2002tachip 35117, the amount of dividends to the defendant shall be corrected to KRW 6,512,864 to KRW 2,769,296, and the amount of dividends to the plaintiff to KRW 3,743,568, respectively.

2. The plaintiff's remaining claims are dismissed.

3. 1/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Of the distribution schedule prepared by the above court on March 2, 2004 with respect to the auction case of real estate rent in Gwangju District Court 2002Taeng 35117, the amount of dividends to the defendant shall be corrected to KRW 6,512,864 to KRW 2,194,862, and the amount of dividends to the plaintiff to KRW 4,318,002, respectively.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the entire pleadings in Gap evidence Nos. 1 and 2.

A. On December 12, 1996, the Plaintiff leased 15 square meters of a single-story house of 60.49 square meters on the land of 328-4 square meters (hereinafter “the real estate of this case”) in Song-dong, Song-gu, Gwangju, Gwangju, Gwangju, for a deposit for rent of 7,00,000 square meters. On December 21, 1996, the Plaintiff occupied the real estate of this case. On July 27, 1999, the Plaintiff had a fixed date in the above lease contract and completed the move-in report to the above domicile on the same day.

B. On August 31, 1999, the Defendant received the registration of the establishment of a mortgage near the debtor's preferential debt amount of KRW 11,700,000,000 for the instant real estate, the debtor's preliminary attachment, and the mortgagee's right to collateral security.

C. After that, the Plaintiff received the order of lease registration of the housing as of October 26, 199, the date of the lease contract: December 12, 1996; 7,000,000 won for the lease deposit; : the resident registration date: July 27, 1999; 15 square meters for the instant real estate; the date of commencement of possession: the date of lease: December 21, 1996; the date of the order of lease registration of the housing as of July 27, 199; and the date of fixed date: the date of the order of lease registration of the said real estate as of November 11, 199.

D. The Defendant filed an application for the auction of real estate under the above right to collateral security (2002 Mata35117), and this Court rendered a decision to commence auction on October 15, 2002, and on October 17, 2002, the record was registered.

E. In the above auction procedure, on March 2, 2004, the court prepared a distribution schedule (hereinafter referred to as the "distribution schedule of this case") stating that among KRW 13,025,728, a sum of KRW 13,025,728, some of the real estate of this case leased KRW 10,000,000 to the non-party Kim Jong-jin, who is the right holder of the claim and the right holder of the right to collateral security, dividends KRW 6,512,864, the balance of the amount to be distributed to the defendant, who is the right holder of the claim and the right to collateral security, KRW 6,512,864, respectively.

F. On the above distribution date, the Plaintiff stated an objection against KRW 3,743,568 out of the above distribution amount against the Defendant among the above distribution amount against the Defendant, and filed a lawsuit of demurrer against the distribution to the instant court within seven days thereafter. The Plaintiff did not demand a distribution by the deadline for demanding a distribution of the said auction procedure.

2. The parties' assertion and judgment

A. The parties' assertion

The plaintiff is the cause of the claim in this case, although the plaintiff did not make a demand for distribution in the above auction procedure, the tenant who completed the lease registration may receive a distribution in accordance with the order of priority, even if there is no demand for distribution, so that the distribution schedule in this case except for the plaintiff who has the right to receive a preferential distribution than the defendant should be revised as stated in the purport of the claim, even if the plaintiff is a registered right holder of the lease order, the defendant can receive a distribution in the above auction procedure even if he is the plaintiff, and in this case, the plaintiff's lease is the right not extinguished by sale in the above auction procedure because the plaintiff is a tenant with the highest priority having the opposing power under the Housing Lease Protection Act, and thus, the plaintiff's lease in this case is the right not extinguished by the sale. Thus, the plaintiff's claim for the right to lease in this case and the plaintiff entitled to receive a refund from the plaintiff did not make a demand for distribution against the defendant in this case against the defendant is unreasonable in violation

(b) Markets:

(1) Status of the person holding the registered order of lease registration

Therefore, if a lessee of a small amount of a deposit has an opposing power as stipulated in Article 3(1) prior to the registration of a request for auction of a house, the Housing Lease Protection Act has a right to receive a certain amount of the deposit in preference to other secured creditors (Article 8(1)). Even if there is no registration of the lease, the lease has an effect on the third party from the following day when the lessee has delivered the house and completes his resident registration (including the time when a report on the transfer has been filed), the lessee who has failed to receive a deposit after the lease has been terminated may apply for the order of lease registration to the district court, etc. having jurisdiction over the location of the leased house (Article 3-3(1). If the lease registration by the execution of the order of lease registration is completed, the lessee shall acquire the opposing power as stipulated in the provisions of Article 3(1) and the preferential right of repayment as stipulated in the provisions of Article 3-2(2). If the lessee has already acquired the opposing power or preferential right before the registration of the right of lease, the lease agreement or preferential right shall be maintained, and the fixed date of the date of lease registration.

(2) Whether the demand for distribution by the person holding the order of lease registration registered in the auction procedure is necessary

Furthermore, as to whether a person having the right to lease registration can participate in dividends as a matter of course without a demand for distribution in the auction procedure, the person having the right to preferential payment in the auction procedure of real estate is in a position similar to the person having the right to lease registration (see Supreme Court Decision 92Da30597, Oct. 13, 1992). The person having the right to preferential payment in the auction procedure of real estate has the right to lease registration, and the registered right to lease is, in principle, extinguished by the successful bid of the leased house if an auction is held on the leased house under the Civil Execution Act (Article 3-5 of the Housing Lease Protection Act provides that the right to lease shall be extinguished by the successful bid of the leased house if an auction is held on the leased house under the Civil Execution Act: Provided, That this shall not apply to the right to lease with an opposing right for which the deposit has not been fully repaid, and the right to demand a distribution, even if the right to demand a distribution is not guaranteed by the person having the right to lease registration under the Civil Execution Act, the first proviso to the right to demand a distribution.

C. Sub-committee

Therefore, according to the above facts, the plaintiff has a right to preferentially pay the above lease deposit to the defendant who is a subordinate right holder. Considering the above circumstances, it is difficult to view the plaintiff's claim alone as contrary to the good faith. Thus, the distribution schedule of this case is 2,769,296 won after deducting the above amount of 3,743,568 won which the plaintiff stated on the above distribution date from the above amount of 6,512,864 won from the above amount of 6,512,864 won (the above amount of 6,512,864 - the above amount of 3,743,568 won) and the above amount of 3,743,568 won should be corrected (the plaintiff's distribution amount against the defendant is corrected to 2,194,862 won). However, the plaintiff's assertion that the distribution schedule of this case should be revised to 3,500 won from the distribution date of this case can not be accepted within the extent of 9798,700 won of this case's.

3. Conclusion

Thus, the plaintiff's claim of this case is justified within the scope of the above 2.C., and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Cho Young-soo