[1] Whether the Housing Lease Protection Act applies to cases where a lease contract is concluded with a lessor who is not a housing owner but has legitimate right to lease (affirmative)

[2] In a case where some of the leased housing sites are transferred to another person and auctioned only on some of the leased housing sites, whether the lessee can exercise preferential right to payment for the auction proceeds of the site (affirmative), and in a case where the lease contract is renewed after the opposing power and the fixed date is obtained, the standard point of time at which the lessee can exercise preferential right to payment according to the previous lease (=

[1] Lease to which the Housing Lease Protection Act applies is not necessarily limited to cases where a lease contract is concluded between a lessee and a lessor who is a housing owner, and also includes cases where a lease contract is concluded with a lessor who has the authority to lawfully conclude a lease contract on a house even if he is not a housing owner.

[2] A lessee and a small-sum lessee with requisites for counterclaim and a fixed-date may exercise preferential rights to payment from the proceeds of realizing the site, even in cases where only the site is sold separately from the leased house and the site, as well as from the case of auction of both the leased house and the site. Such preferential rights to payment are deemed to have the nature of the so-called statutory collateral, and thus, to protect lessee based on the value of the leased house and the site, which is the object leased at the time of the establishment of the lease. As such, even in cases where the leased site that was owned by the lessor was transferred to a third party and the owner of the leased house and the site varies, the lessee may exercise the preferential rights to payment from the proceeds of the auction of the leased site. The same applies to cases where some of the leased housing sites of several parcels are transferred to a third party, and only some of the sites are auctioned after

[1] Article 2 of the Housing Lease Protection Act / [2] Articles 3, 3-2 (2), and 8 of the Housing Lease Protection Act

[1] Supreme Court Decision 2007Da38908, 38915 decided Apr. 10, 2008 (Gong2008Ha, 1107) / [2] Supreme Court Decision 90Meu11377 decided Aug. 14, 1990 (Gong1990, 207) Supreme Court Decision 96Da7595 decided Jun. 14, 1996 (Gong1996Ha, 2180), Supreme Court Decision 99Da25532 decided Jul. 23, 199 (Gong199Ha, 1740), Supreme Court en banc Decision 2001Da76427 decided Jun. 21, 2007)

Plaintiff (Attorney Park Il-hee, Counsel for the plaintiff-appellant)

Defendant 1 and three others

Seoul Western District Court Decision 2011Na12198 decided May 3, 2012

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A lease governed by the Housing Lease Protection Act is not necessarily limited to cases where a lease contract is concluded between a lessee and a lessor who is a housing owner. It includes cases where a lease contract is concluded with a lessor who is authorized to lawfully conclude a lease contract on a house even if he/she is not a housing owner (see Supreme Court Decision 2007Da38908, 38915, Apr. 10, 2008, etc.).

According to the reasoning of the judgment below, the court below determined that the non-party 1, a lessor, acquired the ownership of the building of this case and the land before and after the conclusion of each of the instant lease agreements with the non-party 2 on February 25, 2002, which was before and after the conclusion of each of the instant lease agreements, and the non-party 2 appears to have not raised any particular objection to the conclusion of the lease agreement between the non-party 1 and the Defendants, and that the non-party 3, who was transferred the ownership of the building of this case and the land before subdivision, succeeded to the lease agreement, and the defendants continued to reside without changing the deposit or other terms and conditions of lease after the conclusion of the instant lease agreement.

In light of the above legal principles and records, the above determination by the court below is acceptable, and there is no error of law in the misapprehension of legal principles as to legitimate rental rights as alleged in the grounds of appeal.

2. As to the grounds of appeal Nos. 2 through 4

A lessee and a lessee with a requisite for counterclaim and a fixed date may exercise preferential right to payment from the proceeds of realizing the leased house, even in cases where only the leased house and its site are sold at auction, as well as from the auction of the leased house (see, e.g., Supreme Court Decisions 96Da7595, Jun. 14, 1996; 9Da25532, Jul. 23, 1999). Such preferential right to payment has the legal nature of the right to collateral, and is recognized to protect the lessee based on the value of the leased house and the site which are the object leased at the time of the establishment of the lease. Thus, even if the leased house and the site owned by the lessor are transferred to a third party at the time of the establishment of the lease, the lessee may exercise preferential right to payment from the auction proceeds of the leased house (see Supreme Court en banc Decision 2004Da26133, Jun. 21, 2007). 207.

According to the reasoning of the judgment below, the court below rejected the plaintiff's assertion that the defendants can exercise their preferential right to payment of the land of this case due to the implied renewal of the lease agreement, or limited to the ratio of the area occupied by the land of this case among the entire site of this case, after having the opposing power and the fixed date for the housing of this case, the plaintiff acquired the land of this case, which is a parcel of the leased housing of this case, among several parcels of land and the auction procedure for the land of this case was in progress.

In light of the above legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the requirements and scope of exercise of preferential right to payment against the auction proceeds of the leased housing site under Article 639(2) of the Civil Act, or omission of judgment which affected the conclusion of the judgment.

3. Conclusion

Therefore, all appeals are 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 on the bench.

Justices Min Il-young (Presiding Justice)