Whether a lease right higher than a right to collateral security which is extinguished by a compulsory auction can be set up against a successful bidder.

Even if a lessee has opposing power as prescribed by the Housing Lease Protection Act at the time of application for compulsory auction, in cases where the lessee exists valid at the time of compulsory auction which was set up before he has the opposing power and where there exists a right to collateral security which is extinguished by a successful bid, the lower-ranking right to collateral security shall also be extinguished without being subject to the takeover of the successful bidder, and it cannot be set up against the successful bidder as

Article 608 of the Civil Procedure Act

Dec. 30, 1980 80Ma491 decided Dec. 30, 198 (Law No. 283519Ka12567)

Lee Young-young

For gambling

Seoul District Court's East Branch (81 Gohap1860, 83 Gohap2452 (Counterclaim) judgment)

The Defendant-Counterclaim Plaintiff’s appeal is dismissed.

Expenses for appeal shall be borne by the defendant (Counterclaim Plaintiff).

Text 1 of the original judgment can be provisionally executed.

The plaintiff (Counterclaim defendant, hereinafter the plaintiff) is the main lawsuit, and the defendant (Counterclaim plaintiff, hereinafter the defendant hereinafter the plaintiff) is ordering the plaintiff to issue an apartment recorded in the attached list.

The costs of lawsuit shall be borne by the defendant and a declaration of provisional execution.

The defendant is a counterclaim, and the plaintiff pays 15,000,000 won to the defendant.

The costs of lawsuit shall be borne by the plaintiff and a provisional execution judgment.

The original judgment shall be revoked.

The plaintiff's main claim is dismissed.

The plaintiff shall pay 15,00,000 won to the defendant.

The costs of lawsuit shall be assessed against the plaintiff at all of the first and second instances and a declaration of provisional execution.

1. Judgment on the plaintiff's main claim

In light of the whole purport of the pleading in the statement No. 1 (Decision of Adjudication) and No. 2 (No. 3, the copy of the register, No. 2) without dispute over the establishment, apartment buildings listed in the attached list were owned by Nonparty 1, and it can be acknowledged that the plaintiff participated in the compulsory auction procedure for the above apartment on May 13, 1983 and acquired it by auction. There is no dispute between the parties that the defendant currently uses the above apartment.

Thus, the defendant is obligated to order the plaintiff, the owner of the above apartment, unless there is any other assertion as to the legitimate right to possess and use the apartment.

On the other hand, the defendant's above facts can be acknowledged in light of the above facts in the statement of No. 1 (Lease Agreement) and No. 2 (Resident Registration Card Copy) of the Housing Lease Protection Act, since he leased and occupied the above apartment on June 18, 1981 to 10 million won and reported the move-in of resident registration on August 1, 1982, and entered into a lease contract with the effect that the lease deposit is raised only by 15 million won from August 1, 1982, the new owner may oppose the plaintiff under the Housing Lease Protection Act. Since the defendant cannot respond to the plaintiff's request for surrender before receiving the lease deposit, the defendant's assertion that the lease deposit cannot be asserted against the plaintiff before the return of the lease deposit was made. However, according to the above evidence No. 2 (No. 3) of the Housing Lease Protection Act, the defendant's assertion that the above apartment is not valid by the above decision of the court below as to the successful bidder No. 1 (No. 28, 1976).2).

2. Judgment on the defendant's counterclaim

As a ground for counterclaim, the defendant argued that the lease contract was concluded with the lease deposit of KRW 15 million between the past owner and the past owner of the above apartment house, and the defendant is the lessee who can oppose the plaintiff under the Housing Lease Protection Act and the above lease deposit was returned to the plaintiff on the ground that the above lease term expires. However, the defendant's above lease right as to the non-party's non-party's non-party's non-party's non-party's non-party's above lease right cannot be asserted against the plaintiff. Thus, the defendant's counterclaim is groundless.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the defendant's counterclaim is dismissed as it is without merit. The judgment of the court below is just and the defendant's appeal is unfair, so it shall be dismissed. The appeal cost shall be borne by the defendant who has lost, and the provisional execution cost shall be borne by the losing party, and it shall be decided as per Disposition by applying Article 6 of the Act on Special Cases Concerning the Promotion,

Judges Lee Jae-le (Presiding Judge)