[1] Whether a housing lessee who has opposing power and preferential right to payment can obtain preferential repayment for the termination of the lease (affirmative)

[2] In a case where a housing lessee with opposing power acquires the ownership of the pertinent leased house at the auction, whether the lease is terminated (affirmative)

[1] According to the provisions of Article 3-2(1) of the Housing Lease Protection Act, a lessee who meets the requirements for counterclaim and the fixed date with respect to a third party has the right to receive a deposit in preference to any junior creditor or other creditors from the proceeds from the sale of leased house at auction under the Civil Procedure Act, but even if such requirements are met, if it is possible to oppose the transferee of the leased house, he may obtain a preferential repayment from the proceeds from the sale of leased house to be terminated

[2] When a housing lessee who can oppose the assignee of a leased house acquires the ownership of the leased house by selling the leased house at a successful bid and paying the rent, the lessee of the leased house succeeds to the position of the lessor, and as a result, the claim based on the lease contract becomes extinct due to confusion, and the lease is terminated.

[1] Article 3-2 (1) of the Housing Lease Protection Act / [2] Article 507 of the Civil Act, Articles 3 (2) and 3-2 (1) of the Housing Lease Protection Act

[1] Supreme Court Decision 94Da37646 delivered on July 12, 1996 (Gong1996Ha, 2458), Supreme Court Decision 97Da28407 delivered on September 18, 1998 (Gong1998Ha, 2509) / [2] Supreme Court Decision 96Da38216 delivered on November 22, 1996 (Gong197Sang, 40)

National Livestock Cooperatives Federation

Defendant (Attorney Lee Dong-young, Counsel for defendant-appellant)

Changwon District Court Decision 97Na2676 delivered on June 5, 1997

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

The grounds of appeal are examined.

1. According to the provisions of Article 3-2(1) of the Housing Lease Protection Act, a lessee who has the requisite to set 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 from the sale of leased house at auction under the Civil Procedure Act, but even if he/she is a housing lessee who has preferential right to payment by satisfying the above requirements, he/she may obtain a preferential repayment from the proceeds from the sale of leased house to be terminated

In addition, when a housing lessee who can oppose the assignee of a leased house acquires the ownership of the leased house by winning the leased house at the auction and paying the rent, the lessee succeeds to the status of the lessor and the claim based on the lease contract is extinguished due to confusion, and the lease is terminated.

2. On October 10, 1994, the court below concluded a lease agreement with the non-party Sejong Construction Co., Ltd., a pre-owner of the real estate of this case with a deposit amount of twenty thousand million won and the period from the 20th of the same month to October 25, 1996, and completed the move-in report on November 16, 1994, moving-in report, and obtained the fixed date on the lease agreement on the 28th of the same month. The court below erred by misapprehending the legal principles as to the non-party's right to request a voluntary auction based on the right to collateral security of 45,00,000 won for the real estate of this case owned by the non-party, and it cannot be determined that the Changwon District Court completed the auction procedure on April 3, 1996 with the right to demand a successful bid price of the above real estate of this case to the plaintiff on May 23, 1996, and the court below erred by obtaining the remainder of the rent of this case on August 16, 196, 197.

The grounds of appeal are without merit.

3. Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the plaintiff who has lost. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Cho-Un (Presiding Justice)