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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. Basic facts
A. On April 21, 2013, the Plaintiff entered into a lease agreement (hereinafter “instant lease agreement”) with respect to the lease deposit amounting to KRW 25,000,000, and the lease period from May 18, 2013 to May 17, 2015 (hereinafter “the instant lease agreement”) with respect to the Plaintiff-based D apartment 1, Dong 112 (hereinafter “instant apartment”) and four parcels of land (hereinafter “instant apartment”). On May 20, 2013, the Plaintiff entered into the move-in agreement with the instant apartment and received a fixed date on the same day.
B. 1) On August 26, 2013, upon the Defendant’s application, who is the mortgagee of the instant apartment, the commencement of auction and distribution of dividends, etc., the lower court voluntarily rendered a decision to commence auction on the said apartment on August 26, 2013. The lower court, upon distribution of the amount of KRW 105,963,732 to be actually distributed on March 10, 2014, prepared a distribution schedule that distributes the amount of KRW 122,540 and KRW 723,070 to the head of Ansan-si, Ansan-si, the issuing authority, the National Health Insurance Corporation (the issuing authority), the second priority, with the amount of KRW 723,070 and KRW 105,118,122 to the Defendant as the lessee of the instant apartment, but was excluded from the distribution of dividends.
[Ground of recognition] Facts without dispute, Gap 1 and 2 evidence Gap 3-4, 9-13, the purport of the whole pleadings
2. The assertion and judgment
A. The gist of the parties’ assertion 1) The Plaintiff, as a legitimate small-sum lessee with respect to the instant apartment, has met the requirements for counterclaim under Article 3(1) of the Housing Lease Protection Act before the decision to commence the auction. As such, 22,000,000 won out of the lease deposit should be distributed preferentially to the Defendant, a mortgagee, who is the right to collateral security, and seek a return of the above amount equivalent to unjust enrichment to the Defendant. (2) The instant lease agreement by the Defendant is null and void as a false lease agreement, or even if it was actually leased, it is abused