The case holding that it is not permitted for the debtor to challenge the order of delivery of the successful bidder on the ground that the debtor is a tenant with opposing power, in case where the debtor established a right to collateral security and obtained a loan for an apartment owned by the same person, and the creditor is not a lessee but a lessee for the above apartment, and thus, he is not entitled to claim all rights on the apartment.

The case holding that it is not permitted for the debtor to challenge the order of delivery of the successful bidder on the ground that the debtor is a tenant with opposing power, in case where the debtor established a right to collateral security and obtained a loan for an apartment owned by the same person, and the creditor is not a tenant but a tenant for the above apartment.

Article 2(1) of the Civil Act; Article 3 of the Housing Lease Protection Act; Article 647 of the Civil Procedure Act

Supreme Court Decision 86Meu2788 Decided May 12, 1987 (Gong1987, 973) Supreme Court Decision 87Meu1708 Decided November 24, 1987 (Gong1988, 164) (Gong164) Decided December 8, 1987, Supreme Court Decision 97Da12211 Decided June 27, 197 (Gong197Ha, 2357)

Jeonju Mutual Savings and Finance Company (Attorney Kim Sung-hee, Counsel for defendant-appellee)

Jeonju District Court Order 98Ra142 dated July 8, 1999

The order of the court below is reversed, and the case is remanded to the Jeonju District Court Panel Division.

The grounds of reappeal (to the extent of supplement in case of supplemental appellate brief filed after the lapse of the period) are examined.

According to the reasoning of the judgment below, the court below revoked the original decision ordering the re-appellant to deliver the apartment of this case as to the apartment of this case owned by the non-appeal 1 on March 12, 1993, while the non-appeal 2 leased the apartment of this case from the non-appeal 1 on August 30, 1992 and completed the move-in report on October 15 of the same year since the re-appeal 2 succeeded to the status of the lessor since the re-Appellant was a lessee with opposing power before the right to collateral security was established. Thus, the non-appeal 2 succeeded to the status of the lessee in the auction procedure of this case as to the apartment of this case, the court below revoked the original decision ordering the non-appeal 2 to deliver the apartment of this case to the re-appellant, and dismissed the application for the move-in order.

According to the records, non-appeal 2 is the non-appeal 1 who is the owner of the apartment of this case and himself becomes the debtor on March 12, 1993. The non-appeal 2 established the right to collateral security of 65 million won with respect to the apartment of this case on March 15, 1993, which is immediately after it established the right to collateral security, and it does not enter into a lease contract as well as the lease contract will not be concluded in the future. The non-appeal 2 prepares a confirmation document with the same contents on May 4, 1996 and prepares it again on May 1, 1996, and obtains a loan of 42 million won at the rate of 14.5% per annum from the re-appellant 1, 1993. The re-appeal 2 is non-appeal 90,000 won with a view to 90,000 won and thus, it cannot be viewed that the re-appeal 90,000 won against the non-appellant's owner of this case.

On the other hand, the re-appellant and the non-Appellant 2 asserted that they were residing in the apartment of this case as the non-Appellant 1 and they were not lessee. In light of the fact that if the non-Appellant 2 is the genuine lessee, it is very exceptional that the non-Appellant 2 prepares a written confirmation of the waiver of the right to lease claim against the re-appellant, which is the right to collateral security, and that they are the debtor of the auction claim of this case, it is difficult to recognize the non-Appellant 2 as the true lessee of the apartment of this case.

Nevertheless, the court below dismissed the re-appellant's application for the delivery order on the apartment of this case on the ground that the non-appellant 2 is a lessee with opposing power. Thus, the court below's order erred by failing to exhaust all necessary deliberations as to the circumstances contrary to the good faith principle, or by misunderstanding facts contrary to the rules of evidence, and the ground for reappeal pointing this out

Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-hee (Presiding Justice)