(a) The purport of the provisions of Article 3-2 (1) of the Housing Lease Protection Act and the relationship between the lease deposit obligee and the prior provisional seizure obligee who have preferential right to payment under the same provisions;

B. Criteria for determining whether a provisional seizure creditor has priority over a housing lessee

A. Article 3-2(1) of the Housing Lease Protection Act provides that the requirements for counterclaim (delivery of a house and a report on the transfer of a resident registration) and the lessee of a house having a fixed date on a lease agreement document have the right to be paid a security deposit in preference to junior creditors or other general creditors. This purport is to recognize the rights similar to the real estate security in a lease agreement document if the fixed date is obtained on a lease agreement document. Thus, in a case where there is a creditor of a provisional seizure prior to the real estate security holder, the secured party may receive equal dividends in proportion to the amount of the claim, just as the secured party can receive equal dividends in proportion to the amount of claim

B. In light of the legal nature of Article 3-2 of the Housing Lease Protection Act, it is reasonable to interpret that the lessee has preferential right to payment only by granting a fixed date under the lease agreement document as the date of granting a fixed date. Therefore, even if a lessee satisfies the requirements for counterclaim in advance, if the date of obtaining the fixed date is later than the date of provisional attachment, the provisional attachment obligee shall be deemed to have priority.

(a) Article 3-2 of the Housing Lease Protection Act, Article 696 of the Civil Procedure Act, Article 659 of the Civil Procedure Act

A. Supreme Court Decision 86Meu2570 decided Jun. 9, 1987 (Gong1987, 1138) (Gong1987, 1992, 1392)

Attorney Jeong-jin et al., Counsel for defendant

Defendant

Seoul High Court Decision 92Na1904 delivered on June 10, 1992

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

The facts duly established by the court below are as follows.

In other words, the plaintiff filed an application for provisional attachment against the non-party for the non-party's claim of 30 million won, and the provisional attachment order was issued on May 11, 1989 and the record registration was completed on May 15 of the same year. Meanwhile, on March 7, 1989, the defendant entered into a housing lease agreement with the lease deposit of 18 million won on the above real estate and completed the resident registration on March 19 of the same year and delivered it on July 10, 1990, and the fixed date was granted on the above lease agreement document on July 10, 199. However, upon the application for voluntary auction on the above real estate of the non-party Korea Housing & Commercial Bank, the decision of commencement of provisional attachment was completed on December 17, 1990, and the procedure was completed, and only 310,1400,140,150,300,300,000 won and 150,271,27,07,300.

In light of the above facts, the plaintiff asserted that his priority provisional attachment claims of the plaintiff and his lease deposit claims of the defendant (the remaining amount excluding the amount to be preferentially paid pursuant to Article 8 of the Housing Lease Protection Act) should be distributed equally in proportion to the amount of claims, as long as the execution of his provisional attachment was earlier than the fixed date on the defendant's lease agreement document, the court below held that the above distribution schedule with priority of the defendant is justifiable, since the plaintiff is not the right holder having priority over the above real estate but the general creditor, as long as the provisional attachment creditor has no preferential right to payment, while the defendant has a preferential right to payment by having the fixed date

Therefore, Article 3-2 (1) of the Housing Lease Protection Act provides that the housing lessee who has the requirements for setting up against the Housing (delivery and Report on Transfer of Resident Registration) and the fixed date on the lease agreement document has the right to receive the deposit in preference to junior creditors and other general creditors.

The purpose of this is to recognize the right similar to the real estate security right in a lease agreement where a fixed date is obtained. Thus, if a creditor of prior provisional seizure is a creditor of prior provisional seizure than the real estate security right, the secured party can receive equal dividends in proportion to the amount of the claim (see, e.g., Supreme Court Decision 91Da44407, Mar. 27, 1992; 86Da2570, Jun. 9, 1987). The lease creditor of prior provisional seizure who has met the requirements for counterclaim under Article 3-2 of the Housing Lease Protection Act and has the right to preferential payment by obtaining the fixed date on the deed can be in the relation of equal dividends with the creditor of prior provisional seizure. In this case, whether a creditor of provisional seizure is a creditor of prior seizure, it is reasonable to interpret that the lessee has the right to preferential payment by granting the fixed date under the above law as the date of granting the fixed date under the lease agreement document. Thus, even if he/she satisfies the requirements for counterclaim in advance, the lease creditor of this case should be deemed equal.

The judgment of the court below which interpreted otherwise is erroneous in the misapprehension of legal principles as to the effect of provisional seizure and the provisions of Article 3-2 of the Housing Lease Protection Act, and the appeal pointing this out is with merit.

Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Jae-ho (Presiding Justice)