[1] In a case where a tenant who has a preferential right to payment in the auction procedure has a demand for distribution, whether the auction court must immediately notify the lessor of such demand and proceed with the subsequent procedure (affirmative)

[2] Where a lessee with opposing power makes a demand for distribution immediately before the date of a successful bid, the case holding that the auction court's failure to notify the debtor of such demand is not illegal

[1] In light of the purport of Article 605(1) of the Civil Procedure Act and the proviso of Article 3-2(1) of the Housing Lease Protection Act, which provides that a creditor who has the right to preferential repayment may demand a distribution by the auction date, and Article 605(1) of the Housing Lease Protection Act, which provides that a creditor who has the right to demand a distribution may demand a distribution by the auction date, and Article 3-2(1) proviso of the Housing Lease Protection Act, which provides for coordinating interests between a transferee of a rental house and a junior creditor, if there is time to allow the interested party to clearly recognize the facts by entering such facts in the specifications of the auction objects prior to the auction date, the auction court shall immediately notify the lessor thereof, and proceed with the auction date, but if there is no time to do so, the auction date shall be changed for the notification and the notification to the interested party, and even

[2] The case holding that in case where a successful bidder, who entered the existence and contents of a lease in the specification of an auction object and completed a peremptory bidding in consideration of the existence of lease, is not in front of the auction date and the tenant demanded a distribution, even if the auction court permits the successful bidder as they are, it does not cause any unexpected damages to the successful bidder, and the lessee who demanded a distribution is still able to assert the succession of lease, and it does not go back to the successful bidder, without notifying the debtor of the fact of a tenant's demand for distribution, it cannot be deemed unlawful to make a decision of granting the successful bid and prepare a distribution schedule without notifying the debtor of the fact of a tenant's demand

[1] Articles 605(1) and 633 subparag. 6 of the Civil Procedure Act, Article 3-2(1) and / [2] Article 605(1) of the Housing Lease Protection Act

[1]

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

Plaintiff (Attorney Yu Jong-ju, Counsel for the plaintiff-appellant)

El branch Credit Card Co., Ltd. and one other (Attorney Lee Dong-ho, Counsel for the plaintiff-appellant)

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

Of the distribution schedule prepared by the court on August 7, 1997, the Seoul District Court's East Branch of the Seoul District Court distributed KRW 93,560,000 to the Gwangjin-gu Office, and KRW 75,000,000 to the plaintiff, and changed the amount of KRW 31,200,000 to the defendant El Credit Card Co., Ltd. to KRW 18,692,220, and deleted the amount of dividends to the defendant Kuho Housing Finance Co., Ltd. to KRW 62,496,220.

1. Factual basis

The following facts are not disputed between the parties, or are recognized by comprehensively taking account of the descriptions under subparagraph 1 (a) and subparagraph 2 (a written application for report of right and demand for distribution), Gap evidence 3 (a certified copy of resident registration), Gap evidence 4 (a certified copy of resident registration), Gap evidence 5 (a lease relation investigation), Gap evidence 6 (a distribution schedule), Gap evidence 7-1 (a receipt), 2 (a non-deposit receipt), 3 (a receipt), and 8 (a certified copy) and the whole purport of pleadings as a result of the plaintiff's personal examination, and there is no counter-proof.

A. On January 18, 1996, the Plaintiff leased Nonparty 1 with the lease deposit of KRW 75,00,000 and the lease term of KRW 105,00, 566, Dong-dong, Gwangjin-gu, Seoul, Seoul, for a lease of KRW 75,00,00, which is owned by Nonparty 1, and received a fixed date on the lease contract on the 26th of the same month following the completion of resident registration on March 2 of the same year.

B. As to the above real estate, Defendant El Credit Card Co., Ltd. acquired the right to collateral security (1) No. 31,200,000 won of the maximum debt amount on August 20, 1996, and 65,000,000 won of the maximum debt amount on August 20, 199, respectively.

C. Defendant El Branch Credit Card Co., Ltd. applied for a voluntary auction of the pertinent real estate on October 4, 1996, based on the right to collateral security of the foregoing No. 196, and received a voluntary decision to commence auction.

D. On June 16, 1997, Nonparty 2 bid the highest price of KRW 96,100,000 on the third bidding date of the said real estate auction case.

E. On the 21st of the same month, the Plaintiff reported a right and demanded a distribution with respect to the said real estate auction case.

F. The court, without notifying the debtor of the fact that the plaintiff's demand for distribution, permitted the successful bid at the above price to Nonparty 2 on the 23th of the same month, and the same person paid the successful bid price.

G. On the date of distribution implemented on August 7, 198 of the same year, this court prepared a distribution schedule in which the amount of KRW 96,100,000 of the successful bid price of KRW 96,560, and KRW 31,20,000 and KRW 32,496,2220 are distributed to Defendant LAF Co., Ltd. in the order of priority in the first order to the non-party Gwangjin-gu Office in the second order. The plaintiff appeared on the date of distribution and raised an objection against the said distribution schedule.

2. The plaintiff's assertion

On June 21, 1997, the plaintiff expressed his/her intent to terminate the above lease contract by filing a report on the right and an application for demand for distribution, and the court asserts that the above distribution schedule should be revised since the plaintiff neglected the plaintiff's demand for distribution without performing his/her duty to notify the debtor, who is the lessor, despite the duty to notify the purport thereof.

3. Determination

In the event that a house which is the object of the lease is sold at auction, it is obvious that the tenant with opposing power does not want the continuation of the lease relationship, and thus, it can be viewed as an expression of intent for termination of the lease. If the auction court notifies the lessor, who is the debtor, through the auction court, of the fact of demand for distribution, the lessee's termination will eventually deliver the tenant's termination will to the lessor through the auction court, and the notification of termination will have reached the lessor. Thus, the lease relationship is deemed to have reached the lessee's preferential right to payment pursuant to Article 3-2 (1) of the Housing Lease Protection Act (see Supreme Court Decision 94Da37646, Jul. 12, 1996). However, as seen above, since the court did not notify the lessor, who is the debtor, of the fact of demand for distribution of the plaintiff, it cannot be said that the plaintiff, who is the lessee, has the preferential right to payment, since the lease relationship between the plaintiff and the debtor, has not yet been terminated.

Furthermore, in light of the purport of Article 605(1) of the Civil Procedure Act and the proviso of Article 3-2(1) of the Housing Lease Protection Act, which provides that a creditor who has a right to preferential payment may demand a distribution by the auction date, in cases where a tenant who has a right to preferential payment has a right to demand a distribution in the auction procedure, shall notify the lessor of such fact and proceed with the auction date, if there is sufficient time to recognize the interested parties clearly by entering such fact in the specifications of auction objects, but if there is insufficient time, the auction date shall be changed for notification and notification to interested parties, and even in cases where a demand for a distribution is made after an auction is conducted, the auction date shall be changed for notification and the date of auction for notification to interested parties, unless there is any special reason to the contrary, by deeming that there is a serious defect in the preparation of a specification of goods under Article 633 subparag. 6 of the Civil Procedure Act, and then making a decision on a successful bid and then proceed with the new auction procedure.

However, as in this case, if the successful bidder entered the existence and contents of the lease in the specification of the auction object as in the auction object, and the date of the auction and the date of the auction prior to the date of the auction while the highest bid was completed in consideration of the existence of the lease, and the plaintiff's demand for distribution was made, even if the successful bidder had not obtained the right of the lease deposit under the substantive law, it does not cause any unexpected damages to the successful bidder. Furthermore, even if the tenant who made the demand for distribution still could assert the succession of the lease to the successful bidder, the lessee who made the demand for distribution, and no disadvantage may return to the successful bidder. Thus, even if the auction court did not notify the debtor of the fact of the plaintiff's demand for distribution in consideration of the prevention of delay in the auction procedure and the interests of the parties concerned, it cannot be said unlawful even if the auction court did not notify the lessor of the fact of the plaintiff's demand for distribution, as seen earlier, even if the lease relationship between the plaintiff and the debtor did not have yet acquired the right of the lease deposit under the substantive law, it cannot be disputed by the dispute resolution of the substantive method of dispute.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judges Man-hun (Presiding Judge)