Delivery of a house which is a requirement for preferential repayment under the Housing Lease Protection Act and the period of duration of resident registration (=the period of demanding distribution under the Civil Execution Act)

In light of the fact that Article 8 of the Housing Lease Protection Act provides the lessee with the requirements for the delivery of a house and resident registration under Article 3 (1) of the same Act and grants the registered security right holder the right to preferential payment within a certain amount of the deposit, the lessee exercises the right to preferential payment by means of a demand for distribution, and if it is sufficient if the above requirements are met only until the time of the demand for distribution, it may cause damage to other interested parties in the auction procedure, such as the emergence of the lessee under Article 3-2 of the Housing Lease Protection Act and the demand for distribution. In light of the housing lease without the method of public announcement, the requirements for preferential payment, such as delivery of a house and resident registration, are not satisfied only at the time of acquiring the right to preferential payment, and it is necessary to continue to exist until the completion date of the demand for distribution under the Civil Execution Act.

Articles 3 (1) and 8 of the Housing Lease Protection Act, Article 84 of the Civil Execution Act

Supreme Court Decision 95Da44597 delivered on October 10, 1997 (Gong1997Ha, 3378) Supreme Court Decision 2005Da64002 Delivered on January 13, 2006 (Gong2006Sang, 238)

Plaintiff

Korea Bank (Law Firm Pule, Attorneys Kim Hyeong-soo, Counsel for the defendant-appellant)

Seoul Southern District Court Decision 2006Na4835 Decided February 1, 2007

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

The grounds of appeal are examined.

In light of the fact that Article 8 of the Housing Lease Protection Act provides the lessee with the requirements for the delivery and resident registration of the house prescribed in Article 3 (1) of the same Act and grants the registered security right holder the right to preferential payment within a certain amount of the deposit, the lessee exercises the right to preferential payment by means of a demand for distribution, and if it is sufficient if the above requirements are met only until the time of the demand for distribution, it may cause damage to other interested parties in the auction procedure, such as the emergence of the lessee prescribed in Article 3-2 of the Housing Lease Protection Act and the demand for distribution, etc. in addition to the lessee prescribed in Article 8 of the Housing Lease Protection Act, the requirements for preferential payment of the house and the resident registration in the housing lease without the method of public announcement are not satisfied only when the right to preferential payment is acquired, and it is necessary to continue to exist until the completion date of demand for distribution under the Civil Execution Act (see, e.g., Supreme Court Decisions 95Da4597, Oct. 10, 1997; 2005Da6402, Jan. 13, 2).

In the same purport, the court below is just in holding that the plaintiff completed a move-in report on the transfer of the above real estate prior to the completion of a written decision on commencing the auction of this case's real estate and met the above requirements by October 17, 2005, which was after the completion date of a demand for distribution in the auction of this case ( March 19, 2005), and thus, the plaintiff satisfies the requirements for receiving a priority dividend under Article 8 (1) of the Housing Lease Protection Act. There is no error in the misapprehension of legal principles as alleged in the grounds of appeal.

In addition, since the plaintiff is a case where a family community life is held between the non-party and the non-party who is a lessee of the real estate of this case and the non-party who is a non-party to this case, the argument that they should be viewed as one lessee and be added up each of their security deposits pursuant to Article 3 (4) of the Enforcement Decree of the Housing Lease Protection Act is a new argument that comes into the final appeal, and it cannot be a legitimate ground of appeal against the judgment below.

Ultimately, the argument in the grounds of appeal is without merit.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Hwang-sik (Presiding Justice)