The case holding that the lessee's opposing power against the third party is not lost in case where the lessee cancels ex officio pursuant to the resident registration system of the Dong office having the opposing power and the fixed date under the Housing Lease Protection Act;

The case holding that if a lessee who has opposing power and fixed date under the Housing Lease Protection Act actually moved into another house but fails to receive the lease deposit for the leased house, and the lessee continues to possess the house without ordering the lessor to return it (the occupancy method shall take the method of leaving a part of the household, etc. left in the house and locking the door) with the intention to secure the return of the deposit, and the lessee shall continue to possess the house without transferring the resident registration, and if the lessee wishes to receive the lease deposit in preference to the subordinate mortgagee, etc. in the future auction by continuously meeting the requirements for preferential payment right such as the delivery of the house, resident registration and the fixed date, and even if the employee of the Dong office decided that the lessee transferred the house without permission and cancelled the tenant's resident registration ex officio for this reason, it is reasonable to view that the lessee's resident registration has not lost the opposing power as a whole or finally transferred or extinguished the lessee's resident registration due to the intention to continue to maintain the resident registration in the above leased house.

Articles 3 and 3-2 of the Housing Lease Protection Act, Article 17-2 (1) of the Resident Registration Act, Article 20 of the Enforcement Decree of the Resident Registration Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

1. The term “the term “the term” means “the term” means “the term “the term” means “the term” means “the term.

New Bank Co., Ltd. and one other

1. With respect to the auction of real estate (No. 97 20458), the amount of dividends against the plaintiff in the distribution schedule prepared by this court on February 12, 1998 shall be KRW 35,00,000,000, and KRW 14,400,000,000,000 in cash to the defendant New Bank, and KRW 7,365,578 in cash, and KRW 27,965,578 in the amount of dividends against the defendant Lee Young-young's order shall be corrected to KRW 0 in cash.

2. The costs of lawsuit shall be borne by the defendants.

The same shall apply to the order.

1. Basic facts

A. On September 27, 1995, the Plaintiff leased 20 square meters in 35,00,000 won in deposit money and from September 27, 1995 to September 27, 1995, the Plaintiff paid the full deposit money to the above Bara and completed the move-in report on October 6 of the same year after receiving the said house from the above Bana and completed the move-in report on October 6 of the same year on November 23, 1911 of the same year, and obtained the fixed date of the lease contract on November 23 of the same year.

B. Afterward, the above maximum amount of 14,40,000 won was registered at the New Bank Co., Ltd. (hereinafter “Defendant Bank”) on October 8, 1996 with respect to the above land and building, as the court Nos. 15585 of this Court received on October 8, 1996, and as the court No. 19848 of this Court received on October 31, 1996, the registration of creation of a mortgage of KRW 200,000,000 was completed for the establishment of a mortgage over the above land and building, and the order of this Decree was transferred from the above Kim Gul on January 3, 1997.

C. As to the above land and buildings, the non-party Hyundai Industries Co., Ltd. applied for a real estate auction at Daegu District Court Decision 97Ma20458, and the above real estate was awarded at KRW 282,00,000,000. On February 12, 1998, the amount of KRW 32,70,000, the deposit interest of KRW 550,130, which was calculated by deducting the total amount of KRW 6,670,470 from KRW 315,250,250,000, the remainder of KRW 308,579,660, which was the actual amount of dividends.

D. In the above auction procedure, the Plaintiff demanded the distribution on August 28, 1997 on the claim for the lease deposit amounting to KRW 35,000,000,000, and the Defendant Bank submitted the claim statement regarding KRW 14,400,000, which is the claim secured by the said right to collateral security, and the Defendant Bank submitted the claim statement regarding KRW 126,695,890, which is the claim secured by the said right to collateral security.

E. On the date of distribution on February 12, 1998, the above auction court prepared a distribution schedule of KRW 592,890 to the North-gu, Daegu-gu, Daegu-gu, 308, KRW 308,579,660, KRW 117,309,312 to the non-party Samsung Electronic Co., Ltd., KRW 88,894,070 to the non-party Hyundai Electronic Industry Co., Ltd., KRW 59,417,810 to the non-party Daegu-gu, KRW 14,40,00 to the defendant bank, KRW 27,965,578 to the non-party Lee Young-gu, and the non-party bank did not distribute to the plaintiff at all.

The entry in the evidence No. 1, No. 2, No. 3-1, No. 2, and No. 4-1, No. 5, and No. 7

2. The parties' assertion and judgment

The plaintiff completed the delivery of the leased house and the moving-in report and completed the registration of creation of a new mortgage on each of the above areas after obtaining the fixed date on the lease agreement. Therefore, it is inappropriate for the plaintiff to make a correction of the above distribution schedule because it is improper for the plaintiff to pay dividends to the plaintiff in preference to the defendants in the above distribution procedure. The defendants asserted that the above distribution schedule was lawful, since the plaintiff's resident registration was cancelled ex officio on March 28, 1997, before the above auction procedure commenced, and the plaintiff lost its opposing power under

According to the plaintiff's report on the 19th anniversary of the cancellation of the above 7th anniversary of his/her resident registration on the 196th anniversary of his/her own house, the plaintiff's new 7th anniversary of his/her relocation on the 196th anniversary of his/her own house, and the fact that he/she had purchased the above 9th anniversary of his/her relocation on the 196th anniversary of his/her relocation on the 196th anniversary of his/her relocation on the 197th anniversary of his/her relocation on the 196th anniversary of his/her relocation on the 196th anniversary of his/her relocation on the 196th anniversary of his/her relocation on the 196th anniversary of his/her relocation on the 196th anniversary of his/her relocation on the 196th anniversary of his/her relocation on the 196th anniversary of his/her relocation on the 19th anniversary of his/her relocation on the 19th anniversary of his/her own house.

In the housing lease, a lessee who has the requirements for setting up against the delivery of a house and the resident registration and the fixed date on the lease contract has the right to receive the lease deposit in preference to the subordinate mortgagee in an auction procedure, etc., and the requirements for setting up against the delivery of a house and resident registration shall continue to exist in order to maintain the opposing power, not only if the lessee meets only when he/she acquired the opposing power. If the lessee has completed the moving-in report to the location of the leased house and has moved-in to a temporary or other place with his/her family for any reason after acquiring the opposing power, then he/she can be deemed as a secession from the resident registration as a whole or ultimately, so the opposing power at the time of such moving shall be extinguished (see Supreme Court Decision 97Da43468 delivered on January 23, 1998)

However, as in the case of this case, a director has taken another house with the actual location (the plaintiff asserted that he did not have a director while living separately with his wife, but the conclusion that even if the plaintiff was a director with his family does not lose his opposing power does not change.) In order to secure the return of deposit due to the reason that the plaintiff did not receive a refund of deposit for the leased house, the tenant has continuously occupied the house without the intention of the lessor (the occupancy method shall have a right to leave part of the house in the house) and the tenant has no resident registration, and if the tenant intends to have a deposit for lease prior to the auction procedure by continuously meeting the requirements for delivery of the house and the exercise of the right to preferential repayment, it shall be deemed that the plaintiff had no opposing power to acquire the house without the consent of the tenant, and even if the plaintiff did not have any opposing power to acquire the house without the consent of the tenant, it shall not be deemed that the transfer of the house without the consent of the tenant, and it shall not be deemed that the plaintiff has lost its opposing power to acquire the house as a whole or the house without the plaintiff's possession.

3. Conclusion

Therefore, the plaintiff has the right to receive 35,000,000 won in preference to the defendants, so it is so decided as per Disposition.

Judges Kim Chang-chul (Presiding Judge)