[1] In a case where a person who holds the status as a tenant and the status as a person having a right to lease on a deposit basis under the Housing Lease Protection Act makes a demand for distribution to an auction court based on the status as a tenant (negative)

[2] Details of the obligation that the executing court bears in relation to the preparation of the specifications of the goods sold, and whether the state's liability is established in a case where the executing court or the public official in charge of the auction violated the official obligation on the preparation of the specifications

[3] The case holding that the State is liable to compensate for the damage suffered by the purchaser due to negligence in the course of performing duties by a public official in charge of auction, etc. who did not state that the best preferential right which is not extinguished by sale takes over to the purchaser in preparing

[1] Article 91(3) of the Civil Execution Act provides that "The right to lease on a deposit basis shall be extinguished by sale if it is impossible to oppose the claims for mortgage, seizure or provisional seizure," and Article 91(4) of the same Act provides that "the right to lease on a deposit basis, other than the case of paragraph (3), shall be extinguished by the buyer: Provided, That if the person having a right to lease on a deposit basis demands a distribution, the right to lease on a deposit basis shall be extinguished by sale if the person having a right to lease on a deposit basis demands a distribution, unlike the right to lease which cannot oppose the mortgage, etc., which is extinguished by the person having a right to lease on a deposit basis, shall solely take over the buyer as long as the person having a right to lease on a deposit basis fails to demand a distribution, and if the person having a right to demand a distribution fails to demand a distribution, it shall be deemed that the right to obtain a preferential repayment as a lessee under the Housing Lease Protection Act regardless of the duration of the right to demand a distribution regardless of the right to demand a distribution.

[2] The execution court shall accurately grasp the current status and legal relationship of the real estate to be sold on the basis of the data submitted by interested parties to the real estate subject to sale or by the execution officer, etc. who conducted the investigation into the current status and relationship of the real estate subject to sale, and enter them on the list of the objects of sale. If it is difficult to accurately grasp the current status and management relationship of the real estate subject to sale due to the characteristics of the auction procedure or the limitations on the functions held by the execution court, etc., it shall make it possible to determine the bid price of the real estate subject to sale under its own judgment and responsibility by stating in the list of the objects of sale that it is unclear the current status and legal relationship of the real estate in the case where it is difficult to grasp the current status and relationship of the real estate subject to sale due to the characteristics of the auction procedure or the limitations on the functions held by the execution court. Nevertheless, if a

[3] In a case where a person who has the status as a tenant and the status as the best person having the right to lease on a deposit basis of the status as a tenant under the Housing Lease Protection Act makes a demand for distribution, but the court of execution prepared a detailed statement of the object for sale and conducted an auction without stating in the column "the effect of the permit for sale is not extinguished by the registered right to real estate or provisional disposition", the case holding that the highest priority right to lease on a deposit basis should have been stated in the purport that the above right to lease on a deposit basis should be taken over in preparing a detailed statement of the object for sale since the right to lease on a deposit basis is not extinguished by the sale in auction procedure and it is taken over to the purchaser, but the above right to lease on a deposit basis should have been determined by mistake that the above right to lease on a deposit basis was not taken over by the purchaser due to misstatement in the sale specification of the object

[1] Article 3-2(2) of the Housing Lease Protection Act, Article 303(1) of the Civil Act, Article 91(3) and (4) of the Civil Execution Act / [2] Article 105 of the Civil Execution Act, Article 2(1) of the State Compensation Act, Article 750 of the Civil Act / [3] Article 3-2(2) of the Housing Lease Protection Act, Articles 303(1) and 750 of the Civil Act, Article 91(3) and (4) of the Civil Execution Act, Article 105 of the Civil Execution Act, Article 2(1) of the State Compensation Act

[1] Supreme Court Decision 93Da39676 delivered on December 24, 1993 (Gong1994Sang, 501) / [2] Supreme Court Decision 2006Da913 Delivered on January 31, 2008

Plaintiff

Korea

Seoul High Court Decision 2008Na9490 decided May 7, 2009

All appeals and supplementary appeals are dismissed. The costs of appeal are assessed against the appellant, and the costs of appeal against the supplementary appeal are assessed against the supplementary appellant, respectively.

The grounds of appeal and the grounds of incidental appeal are also examined.

1. As to the Defendant’s first ground of appeal

Article 91(3) of the Civil Execution Act provides, “If a person having a right to lease on a deposit basis is unable to oppose the claims for mortgage, seizure or provisional seizure, the right to preferential payment as a lessee under the Housing Lease Protection Act shall be extinguished by sale.” Article 91(4) of the same Act provides, “The right to lease on a deposit basis, other than the right to lease on a deposit basis, shall be extinguished by sale: Provided, That if a person having a right to lease on a deposit basis demands a distribution, unlike the right to lease on a deposit basis who is unable to oppose the mortgage, etc., it shall be extinguished by sale.” This provision provides, unlike the right to lease on a deposit basis, which is the right to demand a distribution by a person having a right to lease on a deposit basis, takes over only the right to demand a distribution by the person having a right to lease on a deposit basis, unless the person having a right to demand a distribution has made a demand for distribution, regardless of the duration of the right to demand a distribution, and the right to receive a preferential payment as a person having a right to demand a lessee under the Housing Lease Protection Act.

According to the reasoning of the judgment below, after compiling the adopted evidence, the court below acknowledged the facts as stated in its reasoning. The non-party did not complete the registration of prior mortgages, seizure or provisional seizure on the real estate (office) of this case at the time of completion of the registration of creation of the right to lease on a deposit basis. Thus, the right to lease on a deposit basis of this case is the highest right to lease on a deposit basis, and the non-party merely demanded a distribution as a lessee and cannot be deemed to have made a demand for distribution

In light of the above legal principles, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the tenant's demand for distribution, which concurrently served as the person having chonsegwon, as otherwise alleged in the ground of appeal.

2. As to the defendant's second ground for appeal

If the contents of the duty imposed on a public official are not simply for the public interest or for the purpose of protecting the safety and interests of individuals from members of the society, rather than for regulating the internal order of an administrative agency, the State shall be liable for damages sustained by the victim due to the public official’s breach of such duty to the extent that proximate causal relation is acknowledged. In determining the existence of proximate causal relation, the State shall comprehensively take into account not only the probability of the occurrence of the result, the purpose of Acts and subordinate statutes and other behavioral rules imposing the duty, the circumstances after the act foreseeable from the purpose or function of the performance, the form of harmful act, and the degree of damages (see, e.g., Supreme Court Decision 2005Da62747, Dec. 27, 2007). Meanwhile, if the Civil Execution Act prepares a detailed statement of the goods to be sold at the executing court or provides information on the goods to be sold to the public, and thus, it is difficult for the public official to accurately grasp the current status of the goods subject to sale at the auction procedure or to obtain necessary information from the public.

원심이 확정한 사실에 의하면, 소외인은 2006. 6. 27. 주식회사 원형토건(이하 ‘원형토건’이라고 한다)으로부터 이 사건 부동산을 보증금 8,000만 원, 기간 2006. 7. 4.부터 2007. 7. 3.까지로 정하여 임차한 후 2006. 7. 4. 이 사건 부동산에 입주하면서 확정일자를 받고 2006. 7. 7. 전입신고를 마쳤는데, 이 사건 부동산의 지번인 ‘735-11’로 전입신고를 하지 않고 ‘745-11’로 전입신고를 하였다가 2006. 11. 3. 정정신고를 한 사실, 소외인은 임대차계약 체결일인 2006. 6. 27. 원형토건과 사이에 이 사건 부동산에 관한 전세권설정계약도 체결하고 2006. 7. 4. 이 사건 부동산에 관하여 전세금 8,000만 원, 존속기간 2007. 7. 3.까지로 된 이 사건 전세권설정등기를 마친 사실, 원고가 전세권설정등기를 마칠 당시에는 이 사건 부동산에 관하여 선순위 저당권·가압류·압류등기가 없었으나, 2006. 9. 5. 채권자 신용보증기금, 채무자 원형토건, 채권최고액 2억 1,000만 원으로 된 근저당권설정등기가 마쳐진 사실, 근로복지공단은 2007. 5. 21. 이 사건 부동산에 관하여 서울중앙지방법원 2007타경15036호 로 강제경매를 신청하였고, 위 법원이 2007. 5. 22. 강제경매개시결정을 함으로써 강제경매절차가 진행된 사실, 소외인은 위 경매절차에서 배당요구종기일 이전인 2007. 7. 20. 임대차계약서와 주민등록표등본을 첨부하여 임차인으로서 “임차부분 : 전부(방1칸), 임차보증금 : 팔천만 원, 점유기간 : 2006. 7. 4.부터 2007. 7. 4.까지, 전입일자 : 2006. 7. 4., 확정일자 : 2006. 7. 4., 임차권·전세권등기 : 유(2006. 7. 4.), 입주한 날(주택인도일) : 2006. 7. 4.”로 기재한 “권리신고 및 배당요구신청서(주택임대차)”를 제출하여 배당요구를 한 사실, 집행법원은 2007. 8. 1. 매각물건명세서를 작성하면서 ‘최선순위 설정’란에 “2006. 7. 4.(전세권)”, ‘점유자’란에 소외인을 각 기재하고, 소외인이 임차인으로서 권리신고한 내용(단, 전입신고일자는 2006. 7. 7.로 기재) 및 2007. 7. 20. 배당요구한 사실을 기재하는 한편, 등기부등본에 근거하여 소외인이 전세권자로서 보증금이 8,000만 원이라는 내용을 기재하고 그 ‘배당요구 여부(배당요구일자)’란에는 아무런 기재를 하지 않았으며, 또한 ‘등기된 부동산에 관한 권리 또는 가처분으로 매각허가에 의하여 그 효력이 소멸하지 아니하는 것’란에도 아무런 기재를 하지 않은 사실, 이 사건 부동산은 감정가액이 1억 원으로 평가되었는데, 원고는 2007. 8. 16. 제1회 매각기일에 112,600,000원으로 매수신고를 하여 매각허가결정을 받았고, 2007. 9. 13. 대금을 완납하고 2007. 10. 24. 그 앞으로 소유권이전등기를 마쳤으며, 이 사건 전세권설정등기는 같은 날 집행법원의 촉탁에 의하여 강제경매로 인한 매각을 원인으로 말소된 사실, 집행법원은 배당기일인 2007. 10. 11. 실제 배당할 금액 110,012,227원 전부를 신청채권자인 근로복지공단에게 배당한 사실, 그 후 소외인은 원고를 상대로 하여 서울중앙지방법원 2007가합113422호 로 위 경매로 인하여 이 사건 전세권이 소멸되지 않았음에도 그 등기가 말소되었다는 이유로 그 회복등기절차의 승낙을 구하는 소를 제기하였고, 위 법원은 2008. 4. 22. 소외인의 임차인으로서의 배당요구는 전세권자로서의 배당요구로 볼 수 없어 이 사건 전세권은 경매로 인하여 소멸하지 않는다는 이유로 소외인의 승소판결을 선고하였으며, 위 판결은 그 무렵 확정된 사실, 원고는 2008. 5. 8. 소외인에게 전세보증금 명목으로 8,000만 원을 지급한 사실을 알 수 있다.

Examining the above facts in light of the legal principles as seen earlier, since the right to lease on a deposit basis of this case is the highest priority right, which is not extinguished by sale in the auction procedure, and is taken over to the buyer, a public official in charge of auction of the court of execution shall have stated in the column of "the right to registered real estate or provisional disposition that the effect of the right to lease on a deposit basis does not expire by the permission of sale" in preparing a specification of the goods sold, but there was a wrong entry in conducting auction without stating it. The plaintiff determined the bid price under the circumstance of misconception that the right to lease on a deposit basis of this case was not taken over to the buyer due to the erroneous entry in the specification of the goods sold, and caused damages to the plaintiff by acquiring the real estate of this case, and thus, the defendant is liable for compensation for damages caused to the plaintiff due to negligence in the execution of duties by

The decision of the court below to the same purport is just, and there is no error of law by misapprehending the legal principles as to the preparation of a specification of goods to be sold or the legal principles as to state liability.

3. As to the Defendant’s third ground of appeal

If the Plaintiff was aware that the right to lease on a deposit basis of this case was not extinguished if the Plaintiff was well aware of the relevant laws and regulations and detailed review of the copy of the register of the real estate of this case, in light of the purport that the Civil Execution Act prepared and kept a detailed statement of goods to be sold and made them available to the purchaser, the Defendant cannot be deemed to be exempted from liability for damages on the sole basis of the fact that the Plaintiff’s mistake in failing to properly examine the relevant laws and regulations or materials may be considered as a ground for offsetting negligence. Accordingly

4. As to the Plaintiff’s grounds of incidental appeal

The fact-finding or the ratio of comparative negligence in a tort compensation case is within the full power of the fact-finding court unless it is deemed that it is considerably unreasonable in light of the principle of equity (see Supreme Court Decision 98Da38623, Feb. 22, 2000, etc.).

Examining the reasoning of the lower judgment in light of the records, the lower court’s fact-finding and its determination on the grounds for comparative negligence are deemed considerably unreasonable in light of the principle of equity, and thus, the Plaintiff’s ground of incidental

5. Conclusion

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

Justices Shin Young-chul (Presiding Justice)