[1] Where a lessee has received a final and conclusive judgment on a deposit for lease, whether the right to preferential payment based on the right to lease terminates (negative)

[2] In case where a lessee requests an auction to an original copy of the judgment on the claim for return of deposit money by attaching a lease contract to the original copy of the judgment, and submits a certified copy of resident registration which became a moving-in report to the auction court, whether the application for execution can only

[3] Method of demand for distribution and the above [2] In the case of paragraph (2), whether the demand for distribution as a lessee may be deemed to have been made (affirmative)

[1] Where a lessee entered into a lease contract prior to the date of registering the establishment of a mortgage on a house and completed a move-in report after receiving a fixed date, he/she may be paid the lease deposit preferentially to a mortgagee. Although the lessee filed a lawsuit claiming the return of the lease deposit on the ground of the expiration of the lease term and received a final and conclusive judgment, if the lessee did not actually receive the lease deposit, the lease relationship under Article 4(2) of the Housing Lease Protection Act remains in existence without termination. Therefore, the lessee’s right to claim the return of the lease deposit cannot be deemed to have extinguished due to the difference or change

[2] In order for a lessee with the opposing power to obtain a preferential repayment on the date of distribution, a demand for distribution shall be made by the date of distribution to the auction court. However, in case where the lessee voluntarily expresses that the claimed claim is an executory exemplification of the judgment in accordance with the right to claim the return of lease deposit, and then files a request for auction of the leased real estate along with a copy of the lease contract, which has obtained the fixed date, and where the lessee has submitted a certified copy of resident registration of the lessee who is moving into the leased real estate to the auction court, a demand for distribution as the lessee is not necessary to make a demand for distribution as the lessee separately under the same title as

[3] In the case of paragraph (2) above, even if it is interpreted that a demand for distribution should be made separately in an auction court other than an application for execution, in order to receive a preferential dividend, the demand for distribution shall be made in writing or orally, since there is no legal relation which has the right to receive a repayment for the debtor's property, that is, a report to the auction court by specifying the kind of claim, details and amount of the claim, and the method of a report is legally stipulated, so it is possible in writing or orally, and there is no need to submit a written application for a demand for distribution. Therefore, in case where the lessee voluntarily applied for an auction of the leased real estate, while stating that the claim is an executory exemplification of the judgment in accordance with the right to claim the return of the deposit for lease on a house which is the real estate, the lessee did not submit a written application for a demand for distribution to the auction court, even though the lessee did not submit

[1] Articles 3-2 and 4(2)/ [2] Article 3-2 of the Housing Lease Protection Act; Article 653 of the Civil Procedure Act / [3] Article 653 of the Civil Procedure Act

[1]

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

[Plaintiff, Appellant] Plaintiff 1 and 2 others (Law Firm Gong1997Ha, 2856 decided August 29, 1997)

Plaintiff (Law Firm Ampoon, Attorneys Lee et al., Counsel for the plaintiff-appellant)

Gyeonggi Bank, Inc.

1. Of the distribution schedule prepared by the same court on May 16, 1997, the amount of dividends to the plaintiff shall be KRW 12,074,530 from KRW 12,00,000 from KRW 12,00,000, and the amount of dividends to the defendant shall be KRW 24,923,178 from KRW 24,923,178 from KRW 6,97,708 from KRW 12,00 from KRW 12,074,530; and

2. The costs of lawsuit shall be borne by the defendant.

As set forth in the text.

1. Basic facts

In full view of the evidence No. 1, No. 2, evidence No. 3, evidence No. 4, evidence No. 5-1, 2, evidence No. 6, evidence No. 7, evidence No. 8, evidence No. 9, evidence No. 10-1, 2, 3, and evidence No. 11, and evidence No. 11, the following facts may be acknowledged and there is no counter-proof against the testimony of Non-Party No. 1.

A. On April 2, 1995, the Plaintiff entered into a lease agreement with Nonparty 2 for the lease deposit amounting to KRW 30,000,000 with respect to the real estate listed in the [Attachment List owned by Nonparty 2 (hereinafter “instant housing”) and for the lease period from April 8, 1995 to April 8, 1996.

B. On April 3, 1995, the Plaintiff paid the above lease deposit of KRW 30,00,000 to the above non-party 2 on April 3, 1995, and subsequently completed the move-in report on the housing of this case on April 15, 1995 from the registration division of Suwon District Court after obtaining a fixed date in the lease contract.

C. After that, on April 27, 1996, the Suwon District Court received the Suwon District Court No. 21712, and on April 4, 1996, the registration of ownership transfer was completed under the name of Nonparty 3, who was based on the transaction on April 4, 1996. On the same day, the registration of ownership transfer was completed under the name of Nonparty 3, who was the debtor, and the debtor Nonparty 3 and the mortgagee-mortgage 1, who became the defendant of the right to collateral security.

D. Upon the expiration of the lease term on April 8, 1996, the plaintiff sought the return of the lease deposit to the above non-party 3, who is the new owner, but the above non-party 3 did not pay it. On August 1, 1996, the plaintiff filed a lawsuit claiming the return of the lease deposit against the above non-party 3 as the Suwon District Court 96Da34470 and filed a lawsuit claiming the return of the lease deposit against the above non-party 3 on August 1, 1996, the above non-party 3 was sentenced to pay to the plaintiff the amount equivalent to 30 million won and the amount equivalent to 25 percent per annum from June 4, 1996 to the full payment date. The above judgment became final and conclusive on September 5, 196.

E. On September 2, 1996, the Plaintiff applied for a compulsory auction of the instant house by Suwon District Court 96 Doo65873, which indicated that the Plaintiff’s enforcement claim is a security deposit return claim, and submitted it to the auction court with a copy of the above lease contract with the fixed date affixed.

F. On April 15, 1997, the auction court notified the plaintiff of the distribution date as of May 16, 1997, and notified the plaintiff of the distribution of the claim statement and the resident registration statement as the delivery of a certified copy, and the plaintiff submitted the claim statement through Nonparty 1, who is his wife, and the plaintiff's resident registration statement as the moving-in report to the house of this case, to the auction court, but did not submit a separate request for distribution as the lessee.

G. On May 16, 1997, the auction court prepared a distribution schedule to distribute the dividend amount of KRW 38,533,928 to the non-party 4, who was the right to claim delivery, in the first order, to the non-party 560,630 won, in the second order, to the non-party 24,923,178 won, in the second order, and in the third order, to the plaintiff 12,074,530 won, in the third order, in the fourth order, to distribute the dividend amount of KRW 975,590 to the non-party 4.

2. Judgment on the plaintiff and defendant's assertion

A. As the cause of the claim in this case, the plaintiff is not a simple execution applicant creditor, but a tenant who has preferential right to payment prior to the defendant, and therefore has filed a separate application for a demand for distribution. Therefore, since the plaintiff did not have to submit a separate application for a demand for distribution, the court of execution prepared a distribution schedule by deeming the plaintiff as a mere execution applicant creditor, and by deeming the plaintiff as receiving a distribution order lower than the defendant, the above distribution schedule is unlawful. Accordingly, the defendant asserts that the above distribution schedule is unlawful. First, the plaintiff is not a lessee who is not a right of preferential payment but a right of execution with a claim for 30,000,000 won based on a final and conclusive judgment, since the lease has become extinct due to the final and conclusive judgment on the lease deposit, and second, even if the plaintiff is a lessee who has preferential right to payment, the plaintiff is not entitled to a preferential demand for distribution in the auction procedure, but the court of execution did not prepare a distribution schedule for the plaintiff as it did not receive a preferential demand for distribution in the auction procedure.

B. (1) Therefore, in light of the above facts, the plaintiff is entitled to receive 30,00,000 won of the above lease deposit first than the defendant who had the opposing right as the opposing right holder, and even though the plaintiff has received a final and conclusive judgment by filing a lawsuit for claiming the return of the lease deposit on the grounds of the expiration of the lease term, the plaintiff still has the nature of the right to claim the return of the lease deposit as long as it did not actually receive the above lease deposit under Article 4 (2) of the Housing Lease Protection Act, since the plaintiff entered into the lease contract on April 2, 1995, which was the date of the registration of the establishment of the mortgage of the defendant, and completed the move-in report on April 15, 1995, after obtaining the fixed date on April 195, 195.

(2) Next, in order for the plaintiff to demand a distribution to an auction court in order for the plaintiff to receive a preferential distribution, a person with the opposing power who has the fixed date and has the opposing power shall demand a distribution by the auction court not later than the auction date, in order to obtain a preferential payment on the date of distribution. However, as in the case of this case, the plaintiff, the lessee, by themselves, revealed that the claim is an executory exemplification of the judgment in accordance with the right to claim the return of lease deposit, and requests a request for auction of leased real estate along with a copy of the lease contract, which has obtained the fixed date, and thereafter, submit a certified copy of the plaintiff's resident registration which is moving into the leased real estate to the auction court, the plaintiff's request for a distribution as a lessee again with the same title as the plaintiff's claim for the request for a distribution,

Even in such a case, even if a demand for distribution should be made separately in an auction court other than an application for priority distribution, in order to receive a preferential distribution, the demand for distribution is a report to the auction court by clarifying the legal relation which has the right to receive a repayment for the debtor's property, i.e., the kind, details, and amount of the claim, and there is no legal method in the report, so it is possible in writing or orally, and there is no need to submit a written request for a demand for distribution. As such, in filing a request for auction of the instant house, which is a leased real estate, the plaintiff himself/herself, stated that the claim is an executory exemplification of the judgment in accordance with the right to claim the return of deposit for the instant house, which is an auction real estate, and attached a copy of the lease contract with a fixed date, and as long as the plaintiff submitted a certified copy of the plaintiff's resident registration at the request of

3. Conclusion

Therefore, since the plaintiff is a lessee who has preferential right to payment and has a preferential right to receive dividends in preference to the defendant in the auction procedure, the auction court distributes the amount of KRW 24,923,178 prior to the plaintiff to the defendant and distributes only KRW 12,074,530 to the plaintiff, not the whole amount of KRW 30,000,000,000,000 from KRW 12,074,530 to KRW 12,00,000,000 from KRW 24,923,178, the amount of dividends to the defendant is deducted from KRW 17,925,470 (=30,000,00- KRW 12,074,530) to the defendant, and it is inappropriate for the plaintiff to request the correction of the remaining amount after deducting the amount of dividends to the plaintiff from KRW 30,00,00 to KRW 6,97,70.

Judges Dohology