In a case where the lessee Gap et al., who concluded a lease contract before the completion of the establishment registration of a neighboring mortgage on a commercial building and completed a business registration and has continued to renew the lease contract with the fixed date after obtaining the fixed date, claimed a demand for distribution based on the first lease contract after concluding a lease contract again after the establishment registration of a neighboring mortgage, the case holding that the allegation by Gap et al., et al., caused a change in the distribution order, resulting in a change in the burden to be taken over by the buyer, and barring any special circumstances, shall not

In a case where the lessee Gap et al., who entered into a lease contract prior to the completion of the establishment registration of a neighboring mortgage on a commercial building and completed a business registration and has been renewed with the fixed date, claims a distribution based on the first lease contract after obtaining the fixed date after obtaining the final lease contract during the voluntary auction procedure for the said building, the case holding that the claim by Gap et al. cannot be permitted since the final lease contract differs not only from the lease term but also from the initial lease contract, since it is difficult to view that Gap et al.'s demand for distribution is a preferential payment as to the lease deposit under the first lease contract, and it cannot be deemed that Gap et al.'s claim for the claim for a distribution is simply supplemented, since there is a change in the burden to be taken over by the purchaser by causing a change in the distribution order after the completion date of demand for distribution.

Articles 88 and 268 of the Civil Execution Act, Articles 3(1) and 5(2) of the Commercial Building Lease Protection Act

Plaintiff 1 and one other

Seogpo Agricultural Cooperatives

Gwangju High Court ( Jeju) Decision 2013Na326 decided July 3, 2013

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

1. A. The lower court acknowledged the following facts first.

(1) On October 28, 2002, Plaintiff 1 leased the first floor retail store of the instant building by setting the lease deposit amount of KRW 6 million and the lease term of KRW 1 million on November 14, 2002, and after completing business registration on November 14, 2002, and obtained a fixed date on the above lease agreement on the same day. Thereafter, Plaintiff 1 continued to renew the above lease agreement after the expiration of the lease term, and entered into a lease agreement again with Nonparty 1, the owner of the instant building as of August 1, 2009, by setting the lease deposit amount of KRW 8 million and the lease term of KRW 9 million, and obtained a fixed date on the lease agreement on December 4, 2009.

(2) On July 2, 2002, Plaintiff 2 leased the first floor retail store of the building of this case by setting the lease deposit of KRW 10 million and the lease term of KRW 10 million on December 26, 2002, and after completing business registration on December 26, 2002, Plaintiff 2 obtained the fixed date on the above lease date (hereinafter Plaintiff 1-2, Oct. 28, 2002, and Plaintiff 2-2, respectively, “the first lease contract”). Thereafter, Plaintiff 2 continued to renew the above lease after the expiration of the lease term even after the expiration of the lease term, and concluded the lease contract by setting the lease term of KRW 20 million and the lease term of KRW 1,00,000 with Nonparty 1 as the lease term of KRW 2,00,00,000 and then obtained the fixed date of each lease agreement from each of the Plaintiffs on August 18, 209 (hereinafter “the lease term”).

(3) Meanwhile, on June 12, 2007, the Defendant completed the registration of the establishment of each of the instant real property including the instant building with the maximum debt amount of KRW 3 billion on the part of the obligor Nonparty 2 and Nonparty 2.

(4) Following the Defendant’s application, the completion period for the demand for distribution was determined on February 28, 201 after the commencement of the auction procedure for the replacement of real estate regarding each of the instant real estate, upon which the Defendant’s application, and the completion period for the demand for distribution was determined on February 17, 2011. Plaintiff 1 attached each of the final lease agreements to the executing court on February 17, 201, stating that “The lease deposit amount was KRW 9 million, lease contract date, August 1, 2009, and December 4, 2009 with a fixed date fixed date,” and Plaintiff 2 also attached each of the final lease agreements to the executing court on February 18, 2011, which was prior to the completion period for the demand for distribution.

(5) On July 2012, which was after the completion date of the demand for distribution, the Plaintiffs submitted to the court of execution each written opinion that “Plaintiff 1 entered into a lease agreement of KRW 6 million on August 14, 2002 and obtained the fixed date on July 26, 2002, and Plaintiff 2 entered into a lease agreement of KRW 10 million on July 2002 and obtained the fixed date on December 26, 2002.”

(6) After the sale of each of the instant real estate in the instant auction procedure, the execution court, on August 31, 2012, prepared a distribution schedule with the first order of Jeju Special Self-Governing Province, which is a tax claim date, and the second order of Nonparty 4, the lessee with the fixed date, and the third order of priority of the defendant, who is the right to collateral security, was excluded from the distribution.

B. The lower court determined as follows based on the aforementioned factual basis.

The last lease contract submitted by the plaintiffs during a demand for distribution was prepared in the process that the initial lease contract for each shop leased by the plaintiffs was renewed over several occasions, and it is substantially identical to the core of the lease contract, such as the object of lease. Therefore, the opposing power and preferential right to payment by the first lease contract is maintained. Therefore, even though the plaintiffs submitted the last lease contract at the time of demand for distribution, they asserted the fixed date by the first lease contract through the written opinion submitted by the court of execution after the submission of the written agreement at the time of demand for distribution, etc., the plaintiffs can be deemed to have claimed preferential reimbursement of the lease deposit under the first lease contract and made a demand for distribution. Therefore, it is reasonable to deem that the plaintiffs' assertion of the fixed date by the first lease contract after the completion date for demand for distribution is merely a supplement to the claim for the first lease contract, and thus, it is reasonable to deem that the plaintiffs

2. However, we cannot accept the above decision of the court below.

According to the records, in the auction procedure of this case, prior to the plaintiffs' demand for distribution, the plaintiffs' lease period, lease deposit, and fixed date are entered in the real estate status survey prepared and submitted by an execution officer on February 10, 201. The plaintiffs also stated both the lease contract date, lease deposit, and fixed date on the basis of the last lease contract, as seen above, in the request for distribution, and there is evidence that they attached the last lease contract. However, the last lease contract differs not only from the first lease contract, but also from the lease contract period, the amount of lease deposit and lease deposit which are the party to the lease contract. In addition, according to the records, the plaintiff 1 stated in the application for demand for distribution as of August 1, 2009, the delivery date of the building was the date of the last lease contract, and the plaintiff 2 also stated in the application for demand for distribution as of August 1, 2009, which is the date of the last lease contract. Thus, it is difficult to see that the plaintiffs' first claim for the demand for distribution after submitting a fixed date.

Furthermore, the record reveals the following: (a) on April 20, 2012, which was prepared and kept by the execution court on April 20, 2012 after the completion date of demand for distribution, the Plaintiffs’ lease term, lease deposit, and fixed date entered all the contents of the last lease agreement; (b) on June 18, 2012, each of the instant real estate was sold on June 25, 2012; and (c) the decision to permit sale was issued on June 25, 2012; (d) however, on July 2012, the Plaintiffs submitted the above written opinion claiming the lease deposit and the fixed date under the first lease agreement.

According to the above facts, the purchaser of the building of this case in the auction procedure of this case knew that the distribution order based on the fixed date of the plaintiffs' fixed date was lower than the defendant as stated in the sale property specification, and if the plaintiffs have the opposing power under the "Commercial Building Lease Protection Act", the lessee could take over the obligation of return of the deposit not paid in the distribution procedure, with the expectation that he could take over the obligation of return of the lease deposit. However, as the judgment of the court below, if the plaintiffs accepted the claim for change of the fixed date after the completion date of the demand for distribution and distributes the lease deposit of the plaintiffs to the prior priority than the defendant's right of collateral security, it would give an unexpected benefit at the time of purchase by reducing the burden to be taken over by the purchaser through such change in the distribution order. Thus, the above assertion by the plaintiffs would result in a change in the distribution order after

Supreme Court Decisions 2010Da42990 Decided July 12, 2012 and Supreme Court Decision 2007Da68756 Decided January 30, 2009 cited by the lower court are inappropriate to be invoked in the instant case, unlike the instant case.

Nevertheless, the lower court, solely on the grounds indicated in its reasoning, determined that the Plaintiffs should be paid dividends in preference to the Defendant, a senior mortgagee. In so doing, the lower court erred by misapprehending the legal doctrine on the completion period to demand a distribution and the modification and supplementation of the demand for distribution, thereby adversely affecting the conclusion of the judgment.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)