[1] In a case where a lessee who has both opposing power and preferential right to payment is stated to have received the full distribution in the distribution schedule by demanding a distribution, but junior creditor has not received a dividend on the wind that files a lawsuit of demurrer against distribution, whether the lessee may refuse to specify the leased house against the successful bidder (affirmative with qualification)

[2] The order of judgment where a tenant raises a defense of simultaneous performance on the ground that the distribution schedule of the deposit for lease was not established against the successful bidder's request for surrender

[1] In light of the provisions of Articles 3, 3-2, and 4 of the Housing Lease Protection Act, the purpose of recognizing both opposing power and preferential repayment rights to the lessee is to guarantee that the lessee can be returned the deposit, the stability of the auction procedure, predictability of interested parties, etc., even if the lessee holding two rights and the lessee claimed a distribution of the deposit in the auction procedure where the lessee is proceeding with the leased house by selecting preferential payment rights, the lessee may assert the existence of the lease relationship until the successful bidder claims the remainder of the deposit which remains after deducting the amount entitled to receive dividends from the auction procedure, if the total amount of the deposit is not available for distribution. If the total amount of the deposit can be distributed, the lessee cannot claim the existence of the lease relationship until the refund is returned, barring special circumstances, even if the lessee could not claim the dividend of the deposit from the auction procedure until the refund is made. In other words, the lessee's request for simultaneous performance of the deposit can be rejected until the distribution schedule for the lessee becomes final and conclusive.

[2] In a case where a lawsuit of demurrer against a lessee is pending as of the date of the closing of argument, and the distribution schedule against a lessee has not been finalized, the court shall render a ruling ordering the lessee to clarify the distribution schedule at the time when the distribution schedule against the lessee is finalized.

[1] Articles 3, 3-2 (1), and 4 (2) of the Housing Lease Protection Act, Article 536 (1) of the Civil Act / [2] Article 536 (1) of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Plaintiff (Attorney Kim Chang-soo, Counsel for the plaintiff-appellant)

Defendant (Attorney Lee Im-soo, Counsel for the defendant-appellant)

Seoul District Court Decision 96Na29761 delivered on January 24, 1997

The judgment of the court below is reversed, and the case is remanded to the Seoul District Court Panel Division.

We examine the grounds of appeal.

1. On the first ground for appeal

In light of the records, the court below is just in holding that the defendant leased the building of this case from the non-party 1, the title trustee of the building of this case, on June 2, 1994, the lease deposit amount of KRW 80,00,000, and the lease period of the building of this case was determined as 12 months from June 16, 1994, and that the above lease deposit was paid to the non-party 1, the title trustee of the building of this case and the lease period was completed on July 11 of the same year by paying the full amount of the lease deposit, and the resident registration was completed on June 11 of the same year. There is no error of law by misunderstanding the facts against

2. On the second and third grounds for appeal

According to the reasoning of the judgment below, as to the defendant's simultaneous performance defense that could not respond to the plaintiff's claim from the successful bidder of the building of this case until the time when the deposit was returned 80,00,000 won, which is the object of lease, the court below prepared a distribution schedule to distribute the above deposit amount of KRW 80,000 to the defendant at the auction procedure to enforce the security right of Seoul District Court around 1995, which was in progress for the building of this case on August 1, 1995, and that the auction court did not have the right to receive the above deposit amount of KRW 80,00,00 from the above auction procedure to the non-party, which is the junior creditor of the building of this case, for the above 80,000,00 won to the non-party 2, who was the owner of the building of this case, at the auction procedure of this case. The judgment of the court below against the defendant did not have the right to receive the above deposit from the non-party 2, which the plaintiff was entitled to receive dividends from the above auction procedure of this case.

In light of the purport of the provisions of Articles 3(1) and (2), 3-2(1) and (2), and 4(2) of the Housing Lease Protection Act for the protection of lessees, a lessee who satisfies the requirements of the above provisions shall be entitled to claim the continuation of the lease relationship until he receives the return of the deposit, and the lessee shall be entitled to the preferential payment from the value of the leased house with respect to the deposit, and one of the two rights may be selected and exercised (see Supreme Court Decisions 86Meu466, 467, 468, 469, December 24, 1993; 93Da39676, July 12, 1996; 94Da37646, Jul. 22, 1986).

In addition, the purport of recognizing the above two rights is to ensure that the deposit can be returned to the lessee. Considering the stability of the auction procedure, predictability of interested parties, etc., in light of the above two rights, even if the lessee, who has the above two rights, claimed a distribution of the deposit in the auction procedure where the lessee is proceeding with respect to the leased house, if the entire amount of the deposit cannot be distributed if the distribution is conducted according to such order, the lessee may claim the remaining amount of the deposit which remains after deducting the amount of the deposit which is entitled to be distributed from the auction procedure can be asserted against the successful bidder until the deposit is returned. If the entire amount of the deposit can be paid to the successful bidder, barring any special circumstances, the above lessee may be deemed to have refused to claim the deposit at the above auction procedure until the deposit is returned to the successful bidder, namely, until the distribution schedule against the above lessee becomes final and conclusive, it shall be deemed that the name of the successful bidder of the leased house cannot be viewed as having been included in the auction procedure at the time of simultaneous performance of the tenant's objection against the above tenant.

However, according to the records and relevant Acts and subordinate statutes, the defendant is a tenant who has satisfied the requirements under Articles 3(1) and 3-2(1) of the Housing Lease Protection Act and has been holding the above two rights at the above auction procedure under progress with respect to the building of this case, which is the leased object, and if dividends are paid in accordance with such order, it can be distributed in full the deposit amount of KRW 80,000,000. Thus, even if the defendant cannot assert the existence of the lease relationship until the deposit is returned to the plaintiff who is the successful bidder, barring any special circumstances, he may refuse the statement against the plaintiff of the building of this case until the distribution schedule against the defendant becomes final and conclusive due to the termination of the lawsuit of demurrer to distribution.

Meanwhile, according to the records, the above auction court also prepared a distribution schedule that distributes the full amount of the above deposit to the defendant, and the non-party credit cooperative, junior creditor, filed a lawsuit of demurrer against the defendant when the distribution schedule against the defendant was not finalized, and the plaintiff, the successful bidder, filed the lawsuit of this case against the defendant, and the defendant asserted simultaneous performance that the defendant cannot respond to the plaintiff's claim until the above deposit is returned from the plaintiff. Further, while the court below acknowledged that the judgment of the court of first instance of the lawsuit of demurrer against distribution was already finalized as of the date of closing argument of the court of this case, it cannot be found that there was any material that can be recognized in the record, and thus, it did not err by mistake without any evidence.

In light of the above circumstances, the lower court should have deliberated on whether the distribution schedule against the Defendant has become final and conclusive after the completion of the lawsuit of demurrer against distribution, and, in cases where the distribution schedule against the Defendant has become final and conclusive after the termination of the lawsuit of demurrer against distribution, the Defendant’s defense shall be rejected, and in cases where the distribution schedule against the Defendant has yet to be final and conclusive, the lower court shall have to render a ruling ordering the Defendant to clarify at the

Nevertheless, without doing so, the defendant's defense of simultaneous performance cannot be said to have committed an error of not misunderstanding the legal principles as to opposing power and preferential repayment right under the Housing Lease Protection Act, and it is obvious that this affected the judgment, and therefore, it is reasonable to point this out.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)