Suwon District Court Ansan Branch 2012Gadan14393, 2012

In cases where the owner of the leased object and the owner of the site are different from the owner of the leased object from the time of the lease, the lessee may not exercise preferential rights to payment

A lessee who has the requisite to set up against the lessee and the fixed date under the Lease Protection Act may exercise the right to preferential reimbursement regarding the proceeds from the sale of a leased house, even if only the site is sold separately from the leased house, but if the owner of the leased object and the site are different from the owner of the leased object from the time of

2012Na38374 Demurrer against distribution

AAA

SeoulBB Foundation and two others

Suwon District Court Decision 2012Kadan14393 decided September 18, 2012

March 27, 2013

April 3, 2013

1. The plaintiff (appointed party)'s appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff (Appointed Party).

The judgment of the court of first instance shall be revoked. Among the distribution schedule prepared by the court on June 4, 002 with respect to the application for compulsory auction of real estate at Suwon District Court OO branch 001tae451, the amount of dividends to the Republic of Korea is KRW 000, the amount of dividends to the defendant SeoulBB Foundation, KRW 000, and the amount of dividends to the defendant BB Fund at KRW 00,000, and KRW 00 for the designated person's maximum amount of dividends to the plaintiff, and KRW 00,000, respectively, shall be corrected to KRW 00.

1. Facts of recognition;

(a) Ownership of buildings and land, lease contract, etc.;

1) 1980. 6. 12.경 OO시 만안구 OO동 000 대 109㎡， 같은 000 대 109㎡ (이하 '이 사건 각 토지'라고 한다) 외 1필지 지상에 지하 2층， 지상 000의 건물(이하 '이 사건 건물'이라 한다)이 건축되었다.

2) On March 24, 1998, Nonparty E completed the registration of ownership transfer on March 23, 1979 with respect to shares 6/38 of each of the instant lands (hereinafter “each of the instant shares”), and thereafter, Nonparty E completed the registration of ownership transfer on January 13, 2003 with respect to each of the instant shares on the ground of inheritance by agreement and division as of December 29, 2002, and Nonparty GaG completed the registration of ownership transfer on March 8, 2006, and on February 14, 2008 with respect to each of the instant shares on each of the instant lands on December 23/38, 208.

3) On December 18, 2006, Ansan completed the registration of ownership transfer for 4/38 shares of the instant building, and on June 21, 2006, the instant building was converted from a general building to a collective building classified by each floor on the building ledger to a collective building on June 21, 2006 (the sectional registration under this paragraph was made on November 27, 2007), and aftermag, on May 23, 2007, it completed the registration of ownership transfer for 15/38 shares of each floor (0, No. 000, No. 000, and No. 000) of the instant building, and completed the registration of ownership transfer for 4/38 shares on July 13, 207 and November 5, 2007 with respect to 5/38 shares on November 5, 207.

4) On December 7, 2007, the building of this case was registered again on December 7, 2007 with the existing 000 units, 000 units, 000 units, 000 units, 0000 units, 0000 units, and 0000 units, and 0000 units, and 0002 units, and 0000 units (the separate registration under this subparagraph was made on January 3, 2008). The separate registration under this subparagraph was made on December 11, 207 with the previous 00 units, 00 units, 00 units, and 00 units were first owned on January 3, 200, and 00 units were first owned on October 11, 200, and 00 units were first owned on October 10, 200, and each unit was selected on January 3, 2000.

5) On the other hand, AlG entered into a lease agreement (hereinafter referred to as "each of the instant lease agreements") with the designated parties as follows, and the designated parties complete a move-in report, etc. as described below:

B. Progress of auction procedure

1) At the request of Defendant BBB Fund, a creditor of KimF, the procedure was initiated on January 11, 001 for the commencement of compulsory auction (hereinafter referred to as the “instant auction procedure”) at Suwon District Court OO branch of Suwon District Court around 001, 451, and the designated parties filed a report on the right and demand for distribution on the grounds of each lease contract as above with the above execution court.

2) On June 4, 2012, the court of execution prepared, in the above auction procedure, a distribution schedule (hereinafter referred to as the "distribution schedule of this case") that distributes the amount of KRW 00 to the head of the Seocho-si Office (the Republic of Korea) who is the holder of the right to deliver the amount of KRW 00, and KRW 00 to the head of the Seocho-si Office (the Republic of Korea), who is the holder of the right to deliver the amount of KRW 00, and KRW 00,000, and KRW 103.788, who is the holder of the right to demand distribution, to the defendant SeoulBB Foundation, who is the holder of the right to demand distribution, and distribute the amount of KRW 00 to the defendant BB Fund who is the applicant.

3) The designated parties appeared on the aforementioned distribution date, and raised a lawsuit of demurrer against distribution on June 8, 002 against the full amount of the dividend amount of the Defendants, and filed a lawsuit of demurrer against distribution of this case.

[GG] Facts without dispute, Gap 1, 2 through 6, 8 through 12, and 15, each entry (including each natural disaster, if any), and the purport of the whole pleadings.

2. The plaintiff's assertion and judgment (which are appointed parties, and hereinafter referred to as "the plaintiff").

A. The plaintiff's assertion

The plaintiff and the designated parties asserted that the plaintiff can exercise the right of preferential repayment for the proceeds from the realization of the site, as stated in the Housing Lease Protection Act or the Commercial Building Lease Protection Act (hereinafter referred to as the "Lease Protection Act"), since the tenant or small tenant who has met the requirements for counterclaim and the fixed date as stipulated in the above Acts, and that the tenant can exercise the right of preferential repayment for the proceeds from the realization of the site, as well as for the auction of the leased object and its site, separately from the leased object.

B. Determination

1) A lessee with a requisite to set up against the lessee and a fixed date under the Lease Protection Act may exercise preferential right to payment from the proceeds of the sale of a building site even in cases where the building site is sold at auction separately from the leased house, as well as from the auction of the leased house. This legal doctrine applies to cases where the building site owned by the lessor was transferred to another person at the time of the establishment of the lease and the owner of the building site differs from each other (see Supreme Court Decision 2004Da26133, Jun. 21, 2007). However, the above preferential right to payment is recognized to be protected based on the value of the leased object and the building site at the time of the establishment of the lease, and if the owner of the building site is different from the owner of the building site at the time of the lease, the lessee cannot exercise preferential right to payment from the proceeds of the sale of the building site at the time of the lease. According to the above legal principles, the Plaintiff could not conclude the lease contract at the time of 00G 300 and 38G 40G, respectively.

2) On the other hand, the Plaintiff, and each of the instant lands is the land that is the object of site ownership of the instant building, which is an aggregate building. The Plaintiff’s share registration under the name of Kim F, which is not the sectional owner of the instant building, and the instant auction procedure based thereon are invalid as it goes against Article 20 of the Act on the Ownership and Management of Aggregate Buildings, which prohibit the disposal of the right to use site, separately from the section of exclusive ownership. The designated parties against each of the instant shares fall under the ownership of GGG, which is the owner of the instant section of exclusive ownership, also have the right to claim dividends from the proceeds of realizing each of the instant shares, which is the object of site ownership ownership ownership. The Plaintiff’s right to use site under the same Act, which is prohibited from being separated by Article 20 of the Act on the Ownership and Management of Aggregate Buildings, is not applicable to the ownership transfer registration for the instant building, and the ownership transfer registration for each of the instant common building, which is not the owner of the instant building, and the right to use site should not be separated from each of the instant building site.

3) In relation to this, the Plaintiff asserts that the instant building had already been an aggregate building since the construction of the instant building, and that the sectional ownership of the 00 building was established, from an objective and physical aspect, there should be only the 00 building building was built, and the building part physically partitioned among the 0 buildings should have independence in its structure and use, and the act of distinguishing the building part physically partitioned among the 0 buildings as the object of sectional ownership. Here, the act of partitioning is a kind of legal act that seeks to separate the specific parts of the building under legal concept without changing the physical form and quality of the building, and it is recognized if the separate intention of the disposal authority is objectively displayed, and even before the physical completion of the building, it is recognized that the separate intention of the disposal authority would be a sectioned building, and even if the building and the building corresponding to the act of partitioning have been completed objectively and physically, it can not be recognized that the existence of sectional ownership is still registered in the aggregate building register or that it is not recognized differently from the evidence of the Plaintiff’s 1301 to 707.1.

4) Furthermore, as long as the Plaintiff and the designated parties concluded a stability and lease contract, which are a majority of the right holders of each leased object of this case, and KimF also claim that they bear the obligation to return the deposit to the designated parties as joint lessees, but there is no ground to regard KimF as a joint lessor for each leased object of this case, and the Plaintiff’s assertion also has no reason to do so.

3. Conclusion

If so, all of the plaintiff's claims are without merit, they shall be dismissed, and the judgment of the court of first instance is just in this conclusion, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.