Plaintiff (Attorney Jeon Soo-soo et al., Counsel for the plaintiff-appellant)

Defendant 1 and three others

September 18, 2012

1. The plaintiff's respective claims against the defendants are dismissed.

2. Litigation costs shall be borne by the plaintiff.

With respect to the case of compulsory auction by official auction at Daejeon District Court Decision 201Ma13739, the amount of dividends to Defendant 1 shall be 670,739 won, 33,656,15 won, 33,656,151 won, 936,860 won, 10,819 won, 2,979,279 won, 15,32,405 won, 2,807,163 won, 33,65,151 won against the Plaintiff, 80,000 won, among the distribution schedule prepared by the said court on July 4, 2012, the amount of dividends to Defendant 2,979,279, and 15,32,405 won, 2,807,163 won, and the amount of dividends to the Plaintiff shall be corrected to 80,000,000 won, respectively.

1. Process of demurrer against distribution;

A. On September 10, 2008, the Plaintiff entered into a lease agreement with Nonparty 1 (the Nonparty of the judgment of the Supreme Court) by setting the deposit amount of KRW 80,000,000 and the lease period from September 10, 2008 to September 10, 2010 with respect to the Seo-gu (hereinafter “instant housing”).

B. The Plaintiff paid 80,000,000 won to Nonparty 1 on the date of concluding the above lease agreement, and completed the move-in report on the same day and received the fixed date.

C. On July 2, 2011, the Plaintiff filed a lawsuit claiming the return of the lease deposit against Nonparty 1 (this Court Decision 201Ga12689) and the judgment in favor of Nonparty 1 became final and conclusive.

D. Defendant 4 applied for a compulsory auction (this Court Decision 2009Ma24996, hereinafter “pre-auction auction case”) on the instant housing, and the above auction procedure was conducted as follows.

On August 17, 2009, the period of compulsory auction application (defendant 4) on August 16, 2009, when the date of compulsory auction commencement on August 26, 2009, when the date of compulsory auction commencement on August 26, 2009, No. 4213, Nov. 4, 2010, when the period of compulsory auction commencement on February 2, 2010, when the date of the first sale (influence) No. 4213, Nov. 4, 2010;

D. In accordance with the judgment of 201Kadan12689, the Plaintiff applied for a compulsory auction for the instant housing (hereinafter “instant auction procedure”) and the said auction procedure (hereinafter “instant auction procedure”) was conducted as follows.

On July 6, 201, 201, the period of compulsory commencement of compulsory auction (Plaintiff) on July 7, 201, 201, the period of compulsory commencement of auction on September 21, 201, which was the No. 5 of the date of the first sale ( serve as the date of January 3, 2012) on April 24, 2012, the second sale date of April 24, 2012 (Plaintiff 2, the successful bidder 2) 6 June 7, 2012, the date of the distribution of the Plaintiff’s credit account and the submission of the lease contract on July 4, 2012.

E. The Plaintiff did not submit a separate demand for distribution from the instant auction procedure by the deadline for demanding distribution.

F. The current status report submitted by the enforcement officer in the instant auction procedure shows the Plaintiff’s legal relationship. A certified copy of the Plaintiff’s resident registration in the instant house moving-in report is attached, and the Plaintiff’s lease relationship is attached to the specifications of sale objects, but the demand for distribution is not presented.

G. The Defendants are creditors who provisionally seized the instant house from March 23, 2009 to September 28, 2010, which was after the Plaintiff completed the move-in report for the instant house and received the fixed date.

F. The Plaintiff appeared on the date of distribution and raised an objection against KRW 11,325,894 among the dividends against Defendant 4, KRW 2,702,50 among the dividends against Defendant 1, KRW 7,453,987 among the dividends against Defendant 3, and KRW 24,861,461 among the dividends against Defendant 2.

[Reasons for Recognition] Unsatisfy, Facts in this Court, Gap 1, 2, 4 through 9, 11 each entry

2. Judgment on the issue

A. The issues of the instant case

The Defendants asserted that the auction court did not recognize the Plaintiff’s preferential right to demand a distribution before the completion period to demand a distribution, and that the Plaintiff did not prepare a separate written demand for distribution but claimed that the requirements for the demand for distribution as a lessee with preferential right to demand a distribution have been satisfied. Therefore, the key issue of this case is whether the Plaintiff satisfies the requirements for the demand for distribution as a lessee having preferential right to demand a distribution prior to the completion period to demand

(b) Whether the requirements for demanding a distribution are satisfied as a lessee with the preferential right to payment;

1) Demand for distribution shall be made in writing by participating in the execution procedure and having the cause and amount of the claim (including interest, costs and other incidental claims) as acts under the Civil Execution Act intended to obtain reimbursement from the proceeds of sale of the same property. The said written document shall be submitted not later than the completion period for demand for distribution.

2) As above, the person having the right to demand a distribution shall demand the distribution by the deadline for the completion of the demand for distribution, and thereafter, the reason for applying the forfeiture effect is to clarify the legal relationship in the auction procedure in which various interested persons participate, and to prevent the

3) Therefore, if a lessee, who has a general creditor with a certified copy of the judgment with executory power, is entitled to apply for an auction and has a preferential right to demand a distribution as a lessee who has a preferential right to demand a distribution beyond the status of a general creditor while concurrently has a position to do so, it is not necessary to submit a written request for a separate distribution as a requester, even if not, to the extent that the applicant for a auction is not required to submit a written request for a separate distribution.

4) However, as seen earlier, the fact that a certified copy of the Plaintiff’s resident registration in the instant housing moving-in report is attached to the survey report submitted by an execution officer is identical to that submitted by the Plaintiff, even if the said report is deemed identical to that submitted by the Plaintiff, there is no evidence to acknowledge that the Plaintiff submitted a fixed date lease contract prior to the completion period to demand distribution. Therefore, the Plaintiff cannot be recognized as the lessee who has preferential right to payment beyond

3. Judgment on the remainder of the Plaintiff’s assertion

A. The assertion that the applicant is an applicant for double auction;

1) The assertion

The Plaintiff filed an application for double auction prior to the completion period to demand a distribution of the preceding auction case, and the creditor who filed an application for double auction by the completion period to demand a distribution of the preceding auction case has the right to receive a distribution even if he did not make a separate demand for distribution.

2) Determination

Although the fact that the plaintiff did a demand for distribution as a tenant with preferential right to payment in the preceding auction case does not dispute the defendants, the plaintiff only filed a request for auction of this case based on the original copy of the judgment with executory power which was held on July 6, 201, which was the date of the completion date of the demand for distribution in the preceding auction case, and on November 26, 2009, which was the date of the completion date of the demand for distribution in the preceding auction case, and there is no evidence to prove that the plaintiff filed a request for double auction before November 2

B. The assertion that the demand for distribution is not necessary to be made

1) The assertion

In order to recover lease deposit, the Plaintiff filed a request for auction of this case based on an executory exemplification of the judgment with executory power to recover the lease deposit, and the demand for distribution was merely an act to receive repayment from the proceeds of the sale of the same property by participating in the execution procedure by taking advantage of the compulsory execution procedure by other creditors, and thus, the Plaintiff and the applicant for auction do not have any separate demand for distribution. Moreover, even if the Plaintiff did not perform any separate act to explain that the Plaintiff is a lessee with a fixed date and the Plaintiff satisfied the requirements for counterclaim, such as resident registration, the Plaintiff should receive

2) Determination

A) Where a person applying for auction is a lessee with a preferential right to payment, the status of a general creditor holding an executory judgment, etc. and the status of a lessee under the Housing Lease Protection Act. However, even if a lessee applying for auction based on an executory judgment, etc., if he/she wishes to receive a distribution as a lessee having a preferential right to payment under the Housing Lease Protection Act, if he/she satisfies the relevant requirements

B) Meanwhile, even if a lessee with a preferential right to payment has a right to choose to maintain the lease relationship without participating in the distribution procedure, even if the report on the right is made or the content indicating that he/she has the preferential right to payment in the real estate status survey is included, the same effect as the demand for distribution cannot be granted.

C. The assertion as to quasi-real rights

1) The assertion

Since the Housing Lease Protection Act grants the lessee the status as a quasi-beneficiary under certain conditions, the plaintiff is entitled to receive dividends in preference to the defendants who are general creditors.

2) Determination

As alleged by the plaintiff, although the housing lessee who satisfies certain requirements has the right to preferential payment, it is natural right recognized by the Housing Lease Protection Act that it has the right to preferential payment compared to the general creditors, the issue of whether the right to preferential payment exists and whether a separate demand for distribution is needed to obtain preferential payment is completely separate. According to the Civil Execution Act, even if the lessee has the right to preferential payment under the Civil Execution Act, it is obvious that the demand for distribution should be made

D. Claims on legal stability and litigation economy

1) The assertion

A) If the sale price exceeds the lease deposit and the lessee satisfies the requirements for preferential payment right, the person who wants to obtain the real estate will be trusted that the lease deposit will not be acquired, unless there are special circumstances.

B) Nevertheless, as in the instant case, if the successful bidder is required to take over the security deposit as the result of a lessee’s failure to demand a distribution, this would result in an unexpected profit to junior creditors while the successful bidder brings about an unexpected loss to junior creditors, which would result in damage to the successful bidder. Therefore, this would not only go against the concept of justice but also undermine legal stability, and the successful bidder would be remarkably detrimental to the litigation economy, such as filing a lawsuit claiming a return of unjust enrichment against the lessee and junior creditor.

2) Determination

A) First of all, a person who intends to obtain a successful bid may determine whether or not the lessee has the obligation to take over the lease deposit by examining whether or not he/she has the right to demand a distribution by the completion date of the demand for distribution (the same shall apply as mentioned above) and therefore it is difficult to deem that any unexpected damage has occurred as a result of the examination of whether or not he/she has the obligation to take over the lease deposit by examining whether or not the lessee has the right to demand a distribution by the completion date of the demand for distribution (the sale statement prepared at the auction procedure of this case also appears not to have the right to demand a distribution by the Plaintiff)

B) Meanwhile, even if a senior creditor renounces his/her right to participate in the distribution or does not exercise such right, and thus his/her subordinate creditor returns to a junior creditor, this is not only an issue among creditors participating in the distribution, but also a subordinate creditor does not obtain the satisfaction of his/her claim above his/her own claim, and thus, it cannot be said that it

C) In addition, even if a senior creditor did not demand a distribution and thus a junior creditor increased the amount of distribution, it is difficult to view that the junior creditor made unjust enrichment, and even if the tenant did not demand a distribution, it does not constitute an unjust enrichment relationship with the junior creditor or successful bidder, and it does not constitute an unjust enrichment relationship with the junior creditor or successful bidder. Even if there is no aspect of impairing the litigation economy, it is difficult to view such value as the value to be observed by following the principles under the Enforcement Act and impairing the legal stability.

4. Conclusion

Therefore, the plaintiff's claim against the defendants of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judges Cho Dong-han