Whether there exists the opposing power of the right of lease against the successful bidder due to the execution of the mortgage set after the execution of the mortgage set forth after the right of opposing power has been acquired after the establishment of senior mortgage (negative)

In a case where the target real estate is knocked out due to the execution of subordinated mortgage and the priority mortgage is extinguished together, even if the right of lease that can be set up against the subordinated mortgagee exists, the right of lease that has either been registered or opposing power is extinguished together, and in such a case, the successful bidder is not included in the assignee of the leased house as stipulated in Article 3 of the Housing Lease Protection Act, and therefore the lessee cannot claim the effect of the right of lease against the successful bidder.

Article 3 of the Auction Act, Article 3 of the Housing Lease Protection Act

Supreme Court Decision 86Meu1936 Decided February 24, 1987

Western Industrial Company

Defendant-Appellant Lee Jae-hoon, Counsel for the defendant

Seoul Civil District Court Decision 89Na25907 delivered on November 8, 1989

The appeal application is dismissed.

The grounds for filing an appeal by the defendant's attorney are examined.

According to Article 3 of the Auction Act, the right existing on the real estate which is the object of auction is extinguished due to the full payment of the auction price, and in the case of mortgage, the right registered earlier than the auction price is also extinguished. Therefore, in case where the real estate which is the object of auction is sold at auction due to the execution of subordinated mortgage and the senior mortgage is extinguished together, even if the right of lease which can be asserted against the subsequent mortgagee is extinguished, it is reasonable to interpret that the right of lease registered later than the extinguished senior mortgage is extinguished at the same time. Therefore, in this case, the successful bidder is not included in the transferee of the leased house as prescribed in Article 3 of the Housing Lease Protection Act, so the right of lease cannot be asserted against the successful bidder (see Supreme Court Decision 86Meu1936 delivered on February 24, 1987).

According to the facts established by the court below, the plaintiff was successful bidder and acquired by auction as the second mortgagee of the real estate of this case. The defendant was a tenant who had opposing power under the Housing Lease Protection Act before the second mortgagee rather than the second mortgagee, but the above auction real estate was a tenant with the opposing power under the Housing Lease Protection Act, but the above auction real estate was completed one time before the defendant became entitled to the above opposing power, and the right to collateral security was also extinguished due to the above auction. Thus, the judgment of the court below that the defendant cannot assert the right to lease against the plaintiff as the successful bidder is legitimate, and there is no error of law by misunderstanding the legal principles under Article 3 of the Housing Lease Protection Act, such as the theory of lawsuit, and Article 3 of the Auction Act

Therefore, the appeal application is dismissed and it is so decided as per Disposition by the assent of all participating judges.

Justices Lee Chang-chul (Presiding Justice)