In cases where there exists a housing lease with opposing power on the object of auction, whether the successful bidder who was aware of such fact may cancel the contract, or claim for the refund or reduction of the price or damages against the debtor or the creditor who received dividends on the ground that he/she was subject to restrictions on rights due to such cancellation or

In full view of Article 3(3) of the Housing Lease Protection Act and Articles 575 and 578 of the Civil Act, where a house which becomes an object of a lease becomes an object of auction, if the successful bidder is subject to restrictions on the rights, the successful bidder may cancel the contract only when it is impossible to achieve the purpose of the contract, and if the debtor or the debtor is not capable of self-sufficiency, the successful bidder may demand the debtor who has received the distribution to return the whole or part of the price. The successful bidder may claim damages against the debtor who did not notify the defect in the above or separately from the cancellation of the contract, or the creditor who filed an application for auction, knowing the defect in the object of auction, and on the premise that the successful bidder was aware that

Articles 575 and 578 of the Civil Act, Article 3(3) of the Housing Lease Protection Act

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

Course interference (Attorney Lee Jae-sung, Counsel for the defendant-appellant)

Han-il Bank (Attorney Lee Jae-soo et al., Counsel for the defendant-appellant)

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The defendant shall pay to the plaintiff the amount of KRW 31,00,000 and the amount of KRW 5% per annum from the next day to the next day to the next day of the judgment of this case, and the amount of KRW 25% per annum from the next day to the day of full payment.

1. Basic facts

The following facts are not disputed between the parties, or there is no dispute between the parties, Gap evidence 1 (Judgment), Gap evidence 2 (register of a bid date), Gap evidence 6-1 (record of a civil execution case), 2 (application for auction), 3 (decision), 4 (Investigation of Current Status), 5 (Request for Notice of Claim for Appraisal and Appraisal), 6 (Application for Report of Rights and for Distribution), 7 (Application for Report of Distribution), 8 through 10 (Report of Current Status of Real Estate), 11 (Report of Current Status of Real Estate), 12 through 15 (Report of Current Status of Real Estate), 16 (Public Notice and Public Notice of Tender), 17 (Report of Tender Date), 18 through 21 (Report of Claim Statement) and all the arguments, and there is no counter-proof.

(1) On October 21, 1990, Nonparty 1 leased KRW 27,00,000 of the deposit money to Nonparty 504 (hereinafter “the instant real property”) located in Bupyeong-dong, Bupyeong-gu, Incheon, Bupyeong-gu, 67-7, Jung-gu, Incheon. Nonparty 2 completed the move-in report on May 10, 191 while residing in the instant real property.

(2) On March 12, 1992, Park Dog-ro borrowed money from the Defendant, and set up a collateral security with a maximum debt amount of KRW 26,00,000 against the instant real estate to the Defendant.

(3) As Park Dog-ri was unable to repay his debt, the Defendant filed an application for voluntary auction with the Incheon District Court on the basis of the right to collateral security and received a decision on commencing auction from the same court on August 2, 1996.

(4) In the auction procedure on February 3, 1997, the Plaintiff received a successful bid of KRW 46,150,000, and paid the successful bid price on March 7 of the same year. On March 28 of the same year, the Defendant received a dividend of KRW 10,494,638 on the date of distribution of the auction procedure.

(5) Meanwhile, the Plaintiff rejected the order of the instant real estate from the Plaintiff, and the Plaintiff filed a lawsuit for the alteration of the building name with the Defendant on June 17, 1997. On September 8, 1997, this court rendered a ruling ordering the Plaintiff to surrender the deposit amount of KRW 27,00,000 and KRW 27,000 to the Plaintiff as a lessee who can oppose the Plaintiff. The above ruling became final and conclusive around that time.

2. Judgment on the plaintiff's claim

The plaintiff asserts that the non-party 10,494,638 won is the return of the price in accordance with Articles 575(1), 578(1) and 578(2) of the Civil Act, which the defendant paid to the plaintiff in the auction procedure, as the return of the price is the return of the price, which the plaintiff received in the auction procedure, because the non-party 1 had the right of lease opposing the real estate in this case, and was subjected to restrictions on his use and profit-making as the successful bidder. Further, the defendant did not notify the plaintiff of the fact that the right of lease opposing the real estate in this case exists, but did not notify the plaintiff of the fact that the plaintiff had the right of lease opposing the real estate in this case, and thus, the defendant was awarded the successful bid without the burden of the plaintiff. Thus, the defendant is liable to pay the plaintiff the above lease deposit amount of KRW 27,00,000, total amount of KRW 31,000,00 paid by the plaintiff in this lawsuit.

If the successful bidder becomes an object of auction by collecting the housing under Article 3(3) of the Housing Lease Protection Act, Articles 575 and 578 of the Civil Act, if the successful bidder is subject to restrictions on the rights, the successful bidder may cancel the contract only when the purpose of the contract is not achieved, and if the debtor or debtor is not sufficient to pay the proceeds, the successful bidder may demand the creditor who has received the dividends to return the whole or part of the proceeds. The successful bidder may demand damages from the debtor who has not notified the above defects together with the cancellation of the contract or separately from the above mentioned defects, or the creditor who has applied for the auction, by knowing such defects. This right of the successful bidder is presumed to be premised on the fact that the successful bidder knew that there was a lease opposing the object of auction (see Articles 575(1) and 578(3) of the Civil Act). It is clear that the successful bidder has no knowledge of the fact that there was a lease opposing the object of auction (see Supreme Court Decision 96Da7106, Jul. 12, 1996).

However, according to Gap evidence No. 6-11 (Report on Real Estate Status Survey), during the auction procedure of the real estate in this case, it can be acknowledged that the investigation of the current status of the real estate was conducted by the enforcement officer during the auction procedure of the real estate in this case and the fact that the report on the move-in of resident registration was made as of October 18, 1990 while occupying the real estate in this case, was reported to the auction court. Thus, since the plaintiff was aware that there was a lease with opposing power prior to the defendant's collateral mortgage, each of the above arguments premised on the plaintiff's good faith are without merit.

3. Conclusion

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

Judges Yoon Jae-ap (Presiding Judge)