Preferential Distribution of Distribution to Small Lessees

Since the fact that the plaintiff did not demand a distribution by the completion date of the demand for distribution is confirmed, it is legitimate that the execution court prepares a distribution schedule that excludes the plaintiff from the distribution.

Article 88 of the Civil Execution Act

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

1. Basic facts

A. On June 22, 1994, the Plaintiff leased 14,100,000 and continued to reside until November 14, 2006, with ○○ apartment located in ○○○-dong, ○○○○-dong, 7-1, and 14 lots of land (hereinafter “instant apartment”). The Plaintiff leased 14,100,000, monthly rent of KRW 216,000 and was handed over.

B. As to the apartment of this case, the ○○○ District Court (2004Ma1680), the procedure for the auction of real estate was commenced, and the date of completion of the demand for distribution was decided on February 4, 2005, and the Plaintiff demanded a distribution as a lessee at the above court on July 8, 2005.

C. Accordingly, the above court prepared a distribution schedule on November 13, 2006, and distributed 432,251,158 won to the head of ○○ Tax Office under the Defendant’s control, and excluded the Plaintiff from the distribution of dividends. The Plaintiff raised an objection against the Defendant’s dividend on the date of distribution, and filed the instant lawsuit.

[Ground of recognition] A without dispute, evidence No. 1 to 4, purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

The Plaintiff leased the instant apartment No. 102, 413 from the ○○ Housing Co., Ltd., and completed the move-in report lawfully and continued to reside until November 14, 2006. In the above auction procedure, the court of execution did not notify the Plaintiff of the fact that the above auction procedure was in progress, and did not demand a distribution by the deadline for the completion of the demand for distribution. In addition, even if the demand for distribution was not made within the deadline for the completion of the demand for distribution, if the demand for distribution was made until the date prior to the date of distribution, the Plaintiff recognized the priority repayment right as the small lessee in light of the purport of the system, and shall distribute the Plaintiff’s deposit worth KRW

B. Determination

A distribution creditor who needs to demand a distribution under Article 88(1) of the Civil Execution Act may receive a distribution only in cases where he/she has made a demand for distribution by the successful bid date, and in cases where he/she has not made a lawful demand for distribution, even if he/she has a right to demand a distribution under substantive Acts, he/she may not receive a distribution from the proceeds of the successful bid. Therefore, if the distribution schedule is prepared and confirmed to exclude the creditor who has made a legitimate demand for distribution from the proceeds of the distribution, and the distribution has been implemented in accordance with the final distribution schedule, the said distribution schedule does not constitute a non-legal ground, on the ground that the amount equivalent to the amount which he/she could have received a legitimate demand for distribution has been distributed to the subordinate creditor, and the claim for the return of small-sum deposit by a small-sum lessee whose right to demand a preferential payment is recognized under the Housing Lease Protection Act constitutes a claim for a distribution under Article 88(1) of the Civil Execution Act (see Supreme Court Decision 2001Da70702,

On the other hand, the facts that the plaintiff did not demand a distribution by the deadline for the completion of the demand for distribution are as seen earlier. Therefore, it is reasonable that the execution court prepared a distribution schedule with the content that excluded the plaintiff from the distribution of the plaintiff. Therefore, the plaintiff's assertion is without merit (In addition, according to the statement of evidence No. B No. 1, according to the plaintiff's assertion, it is acknowledged that the execution court notified the plaintiff of the progress of the auction on January 14, 2005, prior to the completion date of the demand for distribution of

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.