206Na24345 Compensation (as referred to in this paragraph)

nan

Korea

Seoul Central District Court Decision 2006Gadan115752 Decided September 29, 2006

April 20, 2007

May 18, 2007

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant shall be gold 50,000,000 won for the plaintiff and this shall be February 2, 2003.

7. Five percent per annum for the period from the date of sentencing to the date of sentencing in the first instance, and twenty percent per annum for the period from the following day to the date of full payment.

D. The payment of money at the rate is made.

1. Facts of recognition;

The following facts are not disputed between the parties, or can be acknowledged when the whole purport of the arguments is shown in the statements in Gap evidence Nos. 1, 2, 3, 7, 8, 9, Gap evidence No. 15, Gap evidence No. 16-3, 4, Eul evidence No. 16-1, 2, Eul evidence No. 2, and 3.

A. On June 23, 1994, the first auction (1) Non-party 1 (hereinafter referred to as "non-party 1") completed the registration of creation of a collateral for the debtor and the right to collateral security (hereinafter referred to as "the first collateral mortgage") with respect to a multi-family house (hereinafter referred to as "house of this case") owned by △△-dong 1, Seoul, △△-dong, in order to secure the loan obligations against the non-party 1, the lawsuit of the lawsuit of the non-party 1 (hereinafter referred to as "the lawsuit of the non-party 1") that he manages, in order to secure the loan obligations against the non-party 1, the non-party 1, the non-party 1, who owns the house of this case, △△-dong, △△-dong, △-dong,

(2) Since △△△△△ was unable to repay the above loan debt, △△△△△△△ was an application for voluntary auction of the housing of this case based on the first place mortgage. On April 16, 1998, the voluntary auction procedure (hereinafter referred to as the "first auction procedure") began on April 16, 1998. (3) On December 12, 1991, the Plaintiff completed a move-in report with his family in the multi-family house of △△△△ Dong, Seoul (hereinafter referred to as the "house of this case"), which was residing in the housing of this case, and submitted the rent of 50 million won to the △△△△△△△△△△△△△△, which was a successful bid for the housing of this case, excluding the Plaintiff on July 4, 1992, the first auction procedure, and the auction of this case, which was the first place on July 16, 198.

( 5 ) 원고는 2000. 8. 9. 경 제1차 경매에서 배당에 관한 일체의 권한을 BBB에게 위임하였고, ♧♧♧는 위 배당결과에 대하여 이의를 하지 아니하였다 .

나. 제2차 경매와 이 사건 부동산현황조사보고 ( 1 ) ♧♧♧는 2000. 7. 3. 소외 ♤♤♤의 소외 ○○ 농협협동조합 ( 이하 ' ○○ 농협 ' 이라 한다 ) 에 대한 대출금채무를 담보하기 위하여, 위와 같이 취득한 이 사건 주택에 관하여 ○○농협 앞으로 채권최고액 4억5천만원, 채무자 ♤♤♤, 근저당권자 ○○농협으로 된 근저당권설정등기 ( 이하 ' 제2근저당권 ' 이라 한다 ) 를 마쳐주었다 . ( 2 ) BBB는 2000. 12. 22. 이 사건 주택에 관하여 소외 ◁◁◁ 앞으로 매매를 원인으로 한 소유권이전등기를 마쳐주었다 .

(3) As ○○ Agricultural Cooperative did not repay the above loan debt, it applied for a voluntary auction of the instant housing based on the second collateral mortgage. On January 29, 2001, Seoul District Court Decision 2001ta 3048 (hereinafter referred to as “the second auction”) started. Accordingly, Nonparty 1, the execution officer of the Seoul District Court, who was affiliated with the Seoul District Court, was knife, from April 2, 2001 to April 6, 2001.

까지 사이에 현지출장하여 임차인들의 진술을 듣는 등 이 사건 주택의 현황을 조사한 다음, 부동산현황조사보고서 ( 이하 ' 이 사건 보고서 ' 라 한다 ) 를 작성하고 주민등록등본을 첨부하여 경매법원에 제출하였는데, 이 사건 보고서에는 원고가 위 주택의 지하 전체를 주거용으로 임차하였고, 임차보증금은 5천만원이며, 주민등록전입일자는 1994. 4. 4 .이고, 임차기간과 확정일자 유무 및 그 일자란은 모두 ' 미상 ' 이라고 기재되어 있었다 . ( 5 ) 원고는 제2차 경매절차에서 ○○농협과 BBB가 제2근저당권을 설정한 바로 전날인 2000. 6. 30. ♧♧♧와 사이에, ♧♧♧가 종전의 임대차계약의 임대인의 지위를 승계하는 취지의 임대차계약을 체결하였다고 주장하면서, 2002. 8. 24. 경매법원에 이 사건 임대차계약서와 함께 권리신고 및 배당요구서를 제출하였으나, 경매법원은 원고를 배당에서 제외하였다 .

( 6 ) 이후 제2차 경매절차에서 소외 ▷▷▷가 이 사건 주택을 낙찰받아 2003. 2. 7 .

The award price was paid in full and the ownership was acquired.

(7) Accordingly, the Plaintiff appeared on the date of distribution on March 14, 2003, and raised an objection against the exclusion of 50 million won from the distribution of dividends. However, the Plaintiff did not file a lawsuit of demurrer against distribution.

다. 건물명도소송 ( 1 ) ▷▷▷는 서울중앙지방법원 2003가단215262호로 원고를 비롯한 이 사건 주택의 거주자들을 상대로 위 주택의 명도를 구하는 소 ( 이하 ' 건물명도소송 ' 이라 한다 ) 를 제기하였다 .

( 2 ) 그 소송과정에서 원고는 자신이 ○○ 농협이 제2근저당권을 취득하기 전에 위 주택에 전입신고를 마치고 확정일자를 취득한 대항력 있는 임차인이므로 ▷▷▷로부터 임차보증금 5천만원을 반환받기 전에는 위 주택을 명도할 수 없다는 내용의 동시이행의 항변을 하였으나, 같은 법원은 2004. 6. 16. 이 사건 임대차계약서의 작성경위와 그 형상, 제1, 2차 경매절차에서 원고의 행동, 원고와 위 주택의 종전 소유자 및 임차인들 사이의 관계 등을 종합하여 원고를 가장임차인으로 판단하여 원고의 동시이행의 항변을 배척하고 원고 패소판결을 하였다 .

(3) When the plaintiff appealed but the appeal was dismissed, the above judgment became final and conclusive on May 26, 2005 due to the plaintiff's failure to file an appeal.

2. The plaintiff's assertion

A. The Plaintiff entered into a lease agreement with ○○○ with a deposit for rent of 50 million won as to the instant housing; thereafter, the Plaintiff shall complete a move-in report from December 12, 191 to reside in the said housing; and shall be the lessee who has opposing power under the Housing Lease Protection Act, which was obtained by the fixed date on June 3, 1998 from the said lease agreement.

B. However, in the second auction procedure, the execution officer who investigated and reported the current status of the instant house, and when being ordered by the auction court to investigate the current status of the real estate, there is a duty to thoroughly investigate the current status of the real estate, possession relation, and the amount of deposit, etc. and to report the report of this case, in preparing the report of this case, the execution officer who prepared a false report as if the Plaintiff was the most lessee and submitted it to the auction court.

C. According to the above false report, the court of the second auction held the plaintiff as the most lessee and excluded the dividend, and the court of the lawsuit in the name of the building also ordered the name of the building without rejecting the plaintiff's defense of simultaneous performance. Accordingly, the plaintiff could not be actually returned 50 million won of the lease deposit.

D. Therefore, the Plaintiff, who is the Defendant’s employee, suffered damages from the Defendant, which could not actually receive the lease deposit due to intentional or negligent conduct in the investigation and reporting of the current status of the real estate knife, which is the Defendant’s employee, and thus, sought compensation for

3. Determination;

(a) the existence of breach of official duty;

First, according to the "the fact that the execution officer has violated his official duty in the course of performing the duty of reporting and investigation of the real estate status" (amended by the court rules No. 535 and No. 866-10 of Jun. 26, 2002) in the procedure of the investigation of the current status, the execution officer shall obtain the resident registration of the head of the household who moved into the place where the auction or bidding object is located and attach a copy of the lease contract to the report of the current status as far as possible. As seen above, the execution officer shall hear the tenant's statement by visiting the house of this case, and hear the tenant's statement, and the date of moving into the entire underground house of this case with the plaintiff's resident registration report of this case, and the plaintiff's duty of investigating and reporting the current status of the house of this case cannot be seen as an unlawful investigation and reporting the current status of the fixed date of this case to the court of auction and auction, and there is no special reason for the plaintiff to actively submit the report of this case's resident registration to the court of this case.

(b) the existence of causation;

Even if the report on the instant report was made by stating the lease period, the fixed date, and the date both in the report of this case is against the truth and illegal, the court of auction at the second auction and the court of lawsuit for the name of the building did not accept the plaintiff's defense of demand for distribution and simultaneous performance due to the above report, and there is no evidence to prove that there was causation between the report and the plaintiff's damage, as long as the plaintiff did not find any content suggesting that the plaintiff is the most lessee or the plaintiff is the most lessee in the above report.

In addition, the purport of having an execution officer investigate and report the current status of real estate in an auction procedure is to accurately grasp the current status of real estate subject to bidding so that the general public can easily obtain necessary information and to prevent unexpected damages by disclosing the current status and relationship of rights and interests (see Supreme Court Order 2004Ma94, Nov. 9, 2004). It does not protect lessee (see Supreme Court Order 2004Ma94, Nov. 9, 2004). Thus, the plaintiff's damages are not included in legal interests in which the duty of care to investigate and report the current status of real estate subject to bidding is to be protected.

Therefore, there is no proximate causal relation between the survey on the current status and the duty of reporting the housing of this case and the damage claimed by the plaintiff.

C. The Plaintiff’s breach of duty to avoid and reduce damages, the distribution procedure of an auction court is a lawsuit of demurrer against distribution, and even if there was a defect in the preparation of the distribution schedule or defect in the judgment in the name of the building in the second auction for domestic affairs, even if there was a defect in the trial in the name of the building in the second auction for domestic affairs, the Plaintiff shall seek correction thereof by following remedy procedures as prescribed by the Act, such as filing a lawsuit of demurrer against distribution or filing an appeal, but the distribution schedule excluded from the Plaintiff has become final and conclusive without filing a lawsuit of demurrer against distribution in the second auction for the reason that the judgment against the Plaintiff became final and conclusive due to the failure to file a lawsuit of demurrer against distribution in the name of the building, and the judgment against the Plaintiff became final and conclusive. Therefore, the Plaintiff cannot seek compensation for the above damages.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.

The judge of the presiding judge;

Judges Kim Gi-hee

Judges Effective Enforcement