[1] The purpose of Article 91(3) and (4) of the Civil Execution Act

[2] The case holding that Gap's right to lease on a deposit basis was extinguished by sale of real estate in accordance with the first auction procedure, in case where Gap received a demand for distribution as a person having chonsegwon and a lessee, but only received a distribution as a small lessee, even during the second auction procedure, and Eul filed a lawsuit of demurrer against distribution by purchasing the said real estate as a person holding a right to lease on a deposit basis, and the buyer in the first auction procedure and completing the registration of ownership transfer

[1] Article 91(3) and (4) of the Civil Execution Act / [2] Article 91(3) and (4) of the Civil Execution Act

[1] Supreme Court Decision 2009Da40790 Decided June 24, 2010 (Gong2010Ha, 1430)

Financial Resources Liz Co.

Defendant

Daegu District Court Decision 2014Na18818 Decided April 23, 2015

The judgment below is reversed, and the case is remanded to the Daegu District Court Panel Division.

The grounds of appeal are examined.

1. Article 91(3) of the Civil Execution Act provides, “The right to lease on a deposit basis shall be extinguished by sale if it is impossible to oppose the claims for mortgage, seizure or provisional seizure,” and Article 91(4) of the same Act provides, “The right to lease on a deposit basis, other than the case of paragraph (3), shall be acquired by the buyer: Provided, That if a person having a right to lease on a deposit basis, demands a distribution, the right to lease on a deposit basis, other than the case of paragraph (3), shall be extinguished by sale.” This is, unlike the right to lease on a deposit basis, which cannot be set up against a mortgage, the right to lease on a deposit basis is extinguished solely by the demand of the person having a right to lease on a deposit basis, unless the person having a right to lease on a deposit basis makes a demand for distribution, and, on the contrary

2. Upon citing the judgment of the court of first instance, the court below acknowledged that the Defendant received the distribution of KRW 3,968,459 among the instant real estate as the person having chonsegwon under 105 and the lessee under 102 at the auction procedure (hereinafter “first auction procedure”) around 2009, 1922 with respect to the real estate listed in the separate sheet of the court of first instance (hereinafter “instant real estate”), and determined that the Defendant received the distribution of KRW 3,96,459 as the lessee under the above 102, among the instant real estate in the auction procedure (hereinafter “first auction procedure”), even in the auction procedure (hereinafter “second auction procedure”), the Defendant received the distribution as the person having chonsegwon and the lessee under the above 105-105 as the lessee under the above 105-105,701,708, as the lessee under the above 105-215.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. According to the reasoning of the lower judgment and the evidence duly admitted, the Defendant entered into a lease contract with the Nonparty, who was the owner of the instant real estate on April 1, 2009, on the deposit basis of KRW 32,500,000, and the lease period from April 1, 2009 to September 30, 2009, with respect to KRW 105 among the instant real estate, and completed the registration of the establishment of the instant lease on a deposit basis on April 6, 2009. ② The Defendant demanded the distribution of the instant real estate as a person of chonsegwon on December 29, 201, which was the date prior to the completion date of demand for distribution in the first auction procedure, and ③ The instant real estate was awarded a successful bid to the 105,00,000,000, and the Plaintiff purchased the instant real estate under the name of the Plaintiff on February 10, 2011, and completed the registration of ownership transfer from the said company on March 2131, 20113.

B. According to the legal principles as seen earlier, the Defendant’s right to lease on a deposit basis was extinguished by the sale of the instant real estate in accordance with the first auction procedure, and the Defendant cannot be viewed otherwise on the ground that he did not receive the distribution as a person

C. Nevertheless, the lower court determined that the Defendant was properly apportioned the right to lease on a deposit basis in the second auction procedure on the premise that the Defendant and the Plaintiff purchased the right to lease on a deposit basis, which was the successful bidder in the first auction procedure. In so doing, the lower court erred by misapprehending the legal doctrine on the extinction of the right to lease on a deposit basis due to the right to lease on a deposit basis, or by omitting any judgment thereon, thereby adversely affecting the conclusion of the judgment. The

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)