In Korea, the 9th Asset-Backed Company (Law Firm Cheongn, Attorney Go Jae-ju, Counsel for the plaintiff-appellant)

Defendant (Attorney Jeon Chang-soo, Counsel for defendant-appellee)

January 13, 2016

Seoul Central District Court Decision 2012Ra11096 Decided November 20, 2012

Seoul Central District Court Decision 2012Na58363 Decided February 20, 2013

Supreme Court Decision 2013Da27152 Decided October 29, 2015

1.The judgment of the first instance shall be modified as follows:

With respect to the case of auction of real estate (No. 11799), the Seoul Central District Court's 2010 other District Court's 7,509,333 won in the dividend amount against the defendant among the dividend table prepared by the court on May 2, 2012, and 11,101,194 won in the dividend amount against the plaintiff and 18,610,527 won in the dividend amount against the plaintiff.

2. All costs of the lawsuit shall be borne by the defendant.

The revocation of the judgment of the first instance is as shown in the Disposition.

1. Quotation of judgment of the first instance;

The reasons for the judgment are the same as the reasons for the judgment of the court of first instance, except for the following parts used again, and they are cited by the main sentence of Article 420 of the Civil Procedure

2. Part to be used again (not more than 19 lines, 3 in the judgment of the court of first instance);

A. As in a case where a lessee leases several divided stores from the same lessor to use them as a single place of business and engages in a single business, if it can be deemed that a single lease relationship was established in a lump sum rather than a separate lease relationship between a lessee and a lessor, even if a separate lease contract has been made for each divided store, the scope of lessees to be preferentially reimbursed pursuant to Article 14 of the Commercial Building Lease Protection Act shall be determined on the basis of the aggregate amount of security deposits converted into the total amount of security deposits for all divided stores pursuant to Article 2(2) of the Commercial Building Lease Protection Act.

B. If the facts stated above are added to the facts that there were no disputes over KRW 1, 2 (including the virtual number) and KRW 50,000, the following circumstances may be recognized. ① The Defendant leased 32 divided stores of the first floor located in Jung-gu, Seoul and operated a health room at one place of business without dividing them by walls. ② The five divided stores, including the instant key real estate, from among the 32 divided stores leased by the Defendant were owned by the Nonparty. The Defendant, while renting the said 5 divided stores, prepared a separate lease agreement concerning each of the divided stores. ③ The five lease agreements made between the Defendant and the Nonparty were prepared on December 20, 209, and all the remaining contracts were identical except for the deposit and monthly rent 200,000,000 won. ④ The size of the lease deposit and monthly rent 20,000,000,000,0000,000 won were 10,000,000,0000 won.

C. Examining these facts in light of the legal principles as seen earlier, even if the Defendant prepared a separate lease agreement on five divided stores owned by the Nonparty, including the instant key real estate, it shall be deemed that a single lease relationship has been established in a lump sum instead of establishing a separate lease relationship on each five divided stores. Therefore, insofar as the sum of the guaranteed amount converted pursuant to Article 2(2) of the Commercial Building Lease Protection Act as to the whole five divided stores exceeds the amount stipulated in Article 6 subparag. 1 of the Enforcement Decree of the Commercial Building Lease Protection Act, the Defendant does not constitute a lessee to be preferentially reimbursed for the instant key real estate pursuant to Article 14 of the former Commercial Building Lease Protection Act.

D. Ultimately, the distribution schedule of this case, which was prepared by the Defendant to distribute the amount of KRW 7,509,333 to the Defendant, on the premise that the Defendant did not have preferential right to payment as a small lessee under the Commercial Building Lease Protection Act, is unlawful. Therefore, the amount of KRW 7,509,333 in the distribution schedule of this case against the Defendant should be raised to KRW 0, and KRW 11,101,194 in the amount of dividends against the Plaintiff should be raised to KRW 18,610,527, respectively

3. Conclusion

If so, the judgment of the first instance court is unfair with different conclusions, and thus, the plaintiff's appeal is accepted and the judgment of the first instance is modified as per Disposition.

Judges Park Jin-young (Presiding Judge)