Appellant

Other Party

Busan District Court Order 2009Ma1447 dated December 31, 2009

The appeal of this case is dismissed.

1. Facts of premise;

The record reveals the following facts.

A. On September 14, 2007, the respondent set up a right to lease on a deposit basis on the real estate listed in the separate sheet (hereinafter “instant house”) and completed the move-in report on September 18, 2007.

B. On October 13, 2008, at the request of the Credit Guarantee Fund, the compulsory auction procedure for the instant house ( Busan District Court Decision 2008Ma41054) was initiated.

C. On August 25, 2009, the appellant received the decision of permission for sale in the above procedure, and paid the sales price in full.

2. Summary of grounds for appeal;

The respondent completed the registration of the establishment of a right to lease on a deposit basis with respect to the housing in this case and thereafter made a move-in report, and as long as the right to lease on a deposit basis has been extinguished due to the sale of the housing in this case by filing a report of right and demand for distribution in the procedure for compulsory auction, the lower court's decision dismissing an application for a real estate transfer order against the respondent of the appellant notwithstanding the fact that the

3. Determination

As in this case, whether the same person has both a right of lease on the same house and a right of lease may oppose the buyer prior to the point of time when the person who has established a right of lease has the opposing power of the right of lease or not.

Even in cases where no lease is registered pursuant to Article 3 of the Housing Lease Protection Act, when a lessee completes the delivery and resident registration of a house, it shall take effect against the third party from the following day, and the transferee of a leased house shall be deemed to succeed to the status of the lessor.

However, in exceptional cases where a security right such as a right of lease on a deposit basis, which has been established earlier than the right of lease, becomes extinct due to auction, such right of lease on a deposit basis shall lose its opposing power in order to guarantee the security value secured by the senior security right. This exception aims to prevent the deterioration of security power due to the right of lease established later. As such, in cases where the same person concurrently owns a right of lease on a deposit basis and a right of lease on a deposit basis, whether to recognize the opposing power of the right of lease should be determined

In general, there are many cases where the registration of the establishment of chonsegwon is completed in order to actively protect the right of lease, and when the Housing Lease Protection Act enters into force for a long period of time, it is generally known that the buyer is taking over the deposit when the lessee has completed the moving-in report, and there is no reason to set the right of lease in priority by giving up such opposing power, and the respondent has completed the registration of the establishment of chonsegwon as a means of strengthening the right of lease. In light of the fact that the respondent has completed the registration of the establishment of chonsegwon as a means of strengthening the right of lease, even if the opposing power is recognized, it cannot be said that the respondent has diminished the security value that the respondent intends to secure the right of lease. On the contrary, even if the same person concurrently owns the right of lease and the right of lease on the same house, if the opposing power of the right of lease is not recognized, it would be unreasonable to regard the person who intends to protect his right as the security of the right of lease as taking the value of the house without bearing the burden of the right of lease as a security.

In addition, there is no circumstance that there is another interested party between the date when the establishment of chonsegwon and the move-in report take effect, and the parties to the contract, the amount of security deposit and the amount of security deposit are identical, the respondent reported the right based on the right of lease, and even if the respondent recognizes the opposing power of the right of lease in this case where the source of right of the respondent was stated as a residential lessee, it is difficult to view that the third party or the purchaser suffers losses.

Therefore, the respondent is the lessee who can oppose the appellant until the full refund of the lease deposit is made.

4. Conclusion

Therefore, the decision of the first instance court is just and without merit, and it is so dismissed as per Disposition.

[Omission of Indication of Real Estate]

Judges Long-line (Presiding Judge) Kim Young-chul