[1] Where a lessee holding both opposing power and preferential right to payment fails to receive the total amount of the deposit, the scope of the balance of the deposit that can be set up against the successful bidder (=the amount remaining after deducting the amount of dividends in cases where dividends are paid according to the right dividend order from the security deposit)

[2] The deadline for filing an appeal against non-object (the time when the deadline for filing an appeal expires)

[1] Where a lessee, who has both opposing power and preferential right to payment under the Housing Lease Protection Act, requests a distribution of the entire amount of the deposit in an auction procedure under progress for the leased house by selecting the preferential right to payment first, but if dividends are carried out according to such order, the entire amount of the deposit could not be distributed, the remaining amount of the deposit which remains in the lease relationship may be asserted until the successful bidder claims a refund thereof against the successful bidder. Here, the balance of the deposit which can be asserted against the successful bidder refers to the remaining amount which remains after deducting the actual amount of dividends in the auction procedure, and as such, where dividends are carried out in the correct distribution order in the auction procedure, it shall not be deemed that the lessee deducts the amount of dividends in the distribution procedure. Accordingly, where the amount of the deposit which the tenant could have received is more than the actual amount of dividends, the tenant may not seek a return thereof against the successful bidder, regardless of claiming a return of unjust enrichment against the excessive dividends creditor.

[2] The time limit to file an additional appeal shall be deemed to be until the expiration of the time limit for submitting the appellate brief corresponding to the time of closing argument in the appellate court.

[1] Articles 3, 3-2, and 3-5 of the Housing Lease Protection Act / [2] Articles 372, 395, and 397 of the Civil Procedure Act

[1] Supreme Court Decision 96Da53628 delivered on August 22, 1997 (Gong1997Ha, 2793), Supreme Court Decision 97Da1195 delivered on August 29, 197 (Gong1997Ha, 2856), Supreme Court Decision 98Da2754 delivered on June 26, 1998 (Gong1998Ha, 1984), Supreme Court Decision 98Da1545 delivered on July 10, 1998 (Gong1998Ha, 2093)/ [2] Supreme Court Decision 97Da3829 delivered on November 28, 1997 (Gong193, 193) and 200Da382999 delivered on July 29, 205 (Gong298, 293).

Plaintiff (Supplementary Appellee) (Law Firm Barun Law Office, Attorneys Cho Young-soo et al., Counsel for the plaintiff-appellant)

Defendant (Supplementary Appellant) (Law Firm Gangseo-dong General Law Office, Attorneys Dok-gu et al., Counsel for the defendant-appellant)

Seoul District Court Decision 99Na92234 delivered on May 18, 2000

The judgment of the court below is reversed, and the case is remanded to the Seoul High Court. The defendant's supplementary appeal is dismissed. The incidental expenses are borne by the defendant.

We examine the grounds of appeal.

1. Summary of the judgment below

A. In full view of the evidence adopted, the lower court acknowledged the following facts.

① On May 1, 1996, before the Defendant completed the registration for the preservation of the building of this case, on May 11, 1996, the Nonparty, the owner of the building of this case, leased KRW 50,00,000 as the lease deposit and paid the full amount of the deposit money. On the 13th of the same month, the Defendant occupied the building of this case at the same time, obtained a fixed date on the lease agreement, and completed the move-in report under the Resident Registration Act, whose domicile is the location of the Defendant’s domicile.

② After that, on August 5, 1996, the registration of preservation of ownership was made in the name of the above Nonparty with respect to the instant building. On the same day, the registration of establishment of two (86,800,000 won and two (53,200,000 won for the said non-party, debtor, debtor, and maximum debt amount) was completed.

③ However, with the application for compulsory auction by Korea Guarantee Insurance Co., Ltd., the procedure for compulsory auction of the instant building and the instant land, which is the site thereof, was commenced by the Seoul District Court Branch of Dong Branch of Seoul District Court at around 98,16580, and the Plaintiff received a successful bid on March 15, 199 and paid the successful bid price in full, and completed the registration of ownership transfer under the name of the Plaintiff on the 19th day of

④ Meanwhile, at the above auction procedure on October 16, 1998, the Defendant, as a lessee with a fixed date, demanded a distribution of KRW 50,000,000 for the lease deposit. On May 27, 1999, the auction court prepared a distribution schedule with the content that the Defendant distributes the amount of KRW 18,117,556 to the Defendant as the distribution creditor with the distribution date, and became final and conclusive as it was without the Defendant’s attendance.

B. Based on the above facts, the court below rejected the plaintiff's assertion that the successful bidder cannot be paid the balance of the deposit even in such cases, on the premise that the defendant, the successful bidder, is liable to return the balance of the deposit that was not paid to the defendant in the auction procedure, on the condition that the plaintiff pays the balance of the deposit to the defendant, and at the same time, the defendant is liable to order the plaintiff to clarify the above (A) portion. On the other hand, the court below rejected the plaintiff's assertion as follows: although the auction court made a decision of erroneous payment of the defendant's dividend order in the auction procedure's distribution order, the defendant could have received the total amount of the deposit if the auction court did not immediately decided the defendant's distribution order, but it was impossible for the successful bidder to receive the total amount of the deposit on the wind that the distribution schedule which was erroneously made by the defendant due to the defendant's failure to appear on the date of distribution, and even in such a case, the successful bidder cannot be paid the balance of the deposit.

2. Judgment on the Plaintiff’s grounds of appeal

A. Where a lessee, who has both opposing power and preferential right to payment under the Housing Lease Protection Act, requests a distribution of the entire amount of the deposit in an auction procedure under progress for the leased house, but the entire amount of the deposit could not be distributed in the order of priority, the lessee may claim the continuation of the lease relationship until the successful bidder files a claim against the successful bidder for the remainder which remains after deducting the amount that could have been distributed in the auction procedure from the deposit and the refund thereof (see Supreme Court Decisions 96Da53628, Aug. 22, 1997; 98Da15545, Jul. 10, 198). Here, the balance of the deposit that can be set up against the successful bidder refers to the remainder after deducting the amount actually received in the auction procedure from the deposit amount. Accordingly, where the lessee has actually received dividends, the lessee may seek the return of the excess amount against the successful bidder, apart from the difference that can be claimed against the successful bidder.

B. However, according to the records, the object of the auction in this case had the land in this case other than the building in this case, and there was a mortgage and provisional seizure prior to the new construction of the building in this case on the land in this case. After that, the building in this case was newly constructed and the defendant and small lessee occupied the building in this case. As to the building in this case, it can be known that the defendant is in a position to be preferentially apportioned except small tenants who obtained the highest opposing power and fixed date by the defendant. In this case, the distribution order of the land in this case and the distribution order of the building are different, and in this case, the distribution order of the land price and the building price should be determined separately for the land price and the building price. However, the auction court set the distribution order in the order of the date of acquisition of right without distinguishing the land and the building price, and as a result, did not distribute the price of the building in this case to the mortgagee, etc. in this case in preference to the defendant (in this factual relations, the amount to be distributed to small tenants, as stated in the distribution schedule in this case, should be more easily distributed to the defendant.

C. If so, the court below should order the above part (A) to clarify the balance after examining the amount that the defendant could have received by the right order in the auction procedure of this case and deducting the balance from the deposit money. However, as seen earlier, the court below did not err by misapprehending the legal principles on opposing power and preferential repayment right under the Housing Lease Protection Act, and it is clear that this affected the conclusion of the judgment. The plaintiff's ground of appeal pointing this out is with merit.

3. Judgment on the Defendant’s grounds of incidental appeal

Before determining the grounds of incidental appeal by the defendant, the time limit for filing an appeal on behalf of the defendant shall be deemed to be until the expiration of the period for submitting the appellate brief corresponding to the time of closing argument in the appellate court (see, e.g., Supreme Court Decisions 97Da38299, Nov. 28, 1997; 97Nu2035, Jul. 24, 1998). According to the records, it is obvious that the defendant filed an appeal on July 22, 2000, which was delivered to the plaintiff who is the appellant, and therefore, the defendant's incidental appeal by the defendant of this case is unlawful, and its defects cannot be corrected.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. The Defendant’s incidental appeal is dismissed, and the costs of appeal are assessed against the Defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Han-gu (Presiding Justice)