[1] In a case where a leased house is put up for auction before the expiration of the lease term, whether a demand for distribution by a lessee with opposing power may be deemed as an expression of intent to terminate the lease contract (affirmative)

[2] In cases where a leased house is sold at auction before the expiration of the lease term, whether the lease relationship is terminated when the fact of demand for distribution by the lessee with opposing power is notified to the lessor by the auction court (affirmative)

[1] In a case where a leased house is put up for auction, making a demand for distribution to an auction court without the expiration of the lease term, clearly indicating that the lessee does not want to continue the lease relationship, and barring any special circumstances, it may be deemed as an expression of intent for termination of the lease, barring any special circumstances.

[2] In a case where a leased house is put up for auction and a lessee who can oppose the assignee of the house has made a demand for distribution to an auction court without the expiration of the lease term, if the auction court notifies the lessor of the fact of demand for distribution as prescribed by Article 606(1) of the Civil Procedure Act, the termination notice is considered to have reached the lessor at the time when the lessee's termination intention was delivered to the lessor through the auction court, and the lease relationship is terminated at the time when the demand for distribution was notified, and the lessee's demand for distribution to the auction court cannot be deemed to have terminated immediately on the sole basis of the fact that

[1] Article 3-2 (1) of the Housing Lease Protection Act / [2] Article 3-2 (1) of the Housing Lease Protection Act, Article 606 (1) of the Civil Procedure Act

[1] [2] Supreme Court Decision 94Da37646 delivered on July 12, 1996 (Gong1996Ha, 2458)

Taesan Mutual Savings and Finance Co., Ltd. (Law Firm Han & Yang, Attorneys Song Dun et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Choi Boo et al., Counsel for the defendant-appellant)

Suwon District Court Decision 97Na581 delivered on June 4, 1997

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

According to the provisions of Article 3-2 (1) of the Housing Lease Protection Act, a lessee who has the requisite for setting up against a third party and the fixed date has the right to receive a deposit in preference to any junior creditor or other creditors from the proceeds of realizing the leased house at the time of auction under the Civil Procedure Act, but even if he/she is a housing lessee who has the right to preferential payment by satisfying the above requirements, if he/she can set up against the transferee of the house, he/she shall not

Meanwhile, in case where a leased house is sold by auction, the demand for distribution to an auction court without the expiration of the lease term is clearly indicated that the lessee does not want the continuation of the lease relationship, and barring any special circumstances, it may be deemed as an expression of intent for termination of the lease, barring any special circumstances. If the auction court notifies the lessor of the fact of demand for distribution pursuant to Article 606(1) of the Civil Procedure Act, the lessee’s intention for termination is delivered to the lessor through the auction court, and the termination notice is deemed to have arrived at the lessor. Thus, the lease relationship is terminated at the time of notification of demand for distribution (see Supreme Court Decision 94Da37646, Jul. 12, 1996). The lease relationship is terminated at the time of notification of demand for distribution (see Supreme Court Decision 94Da37646, Jul. 12, 199

In the auction procedure to exercise the security right to the leased house of this case commenced upon the plaintiff's application, the court below held that the defendant, who is the lessee who could oppose the assignee of the leased house of this case and has the preferential right to payment, requested an auction court prior to the expiration of the lease term, but did not notify the auction court and the non-resident of the fact that he did not demand the distribution of the defendant, and on the other hand, the defendant cannot receive the distribution in the auction procedure of this case. In light of the above legal principles and records, the judgment of the court below is just, and there is no error of law such as misunderstanding of legal principles as to the right to preferential payment of the housing lessee, or misunderstanding of legal principles as to the right to demand the distribution of the

The grounds of appeal are without merit.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Chang-hun (Presiding Justice)