Where a housing lessee has a fixed date on or before the date when the delivery and resident registration of the house is completed, the time when the right to preferential payment arises;

Article 3(1) of the Housing Lease Protection Act provides that even in the absence of a registration, when a lessee completes the delivery and resident registration of a house, the right to preferential payment under Article 3-2(1) of the Housing Lease Protection Act shall take effect against the third party from the following day when the lessee has completed the delivery and resident registration, and Article 3-2(1) of the same Act provides that the lessee who has the requisite for counterclaim under Article 3(1) of the same Act and the fixed date on the lease agreement document shall have the right to be paid the deposit in preference to the junior creditor and other creditors from the proceeds from the realization of real estate through auction, etc.

Articles 3 (1) and 3-2 (1) of the Housing Lease Protection Act

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

Plaintiff (Attorney Cho Sung-hee, Counsel for the plaintiff-appellant)

Han Bank (Attorney Kim Jae- Jae et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 97Na52877 delivered on May 1, 1998

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

Article 3(1) of the Housing Lease Protection Act (hereinafter referred to as the "Act") provides that even if the lease is not registered, if the lessee completes the delivery and resident registration of the house, it shall take effect against the third party from the following day when the lessee completes the delivery and resident registration, and Article 3-2(1) of the Act provides that the lessee who has the requirements for counterclaim under Article 3(1) of the Act and the fixed date on the lease agreement document shall have the right to receive the deposit in preference to the junior creditor and other creditors from the proceeds from the sale by auction, etc., and the lessee of the house shall have the right to receive the deposit in preference to the junior creditor and other creditors. The right to preferential payment under Article 3-2(1) of the Act shall take effect on the basis of the following day after the delivery of the house and the completion of resident registration as well as the opposing power under Article 3(1) of the Act (see this Court Decision 97Da

The court below acknowledged that the plaintiff entered into a lease agreement with the non-party 1 on October 20, 195 on the housing of this case and received it on November 19, 195, and obtained a fixed date on the lease agreement, and the defendant also completed the registration of creation of mortgage on the housing of this case on the same day. In the above purport, the plaintiff's preferential right to payment was completed as of November 28, 1995 on the day following the date when the fixed date was obtained, and therefore, the plaintiff's preferential right to payment was generated as of November 28, 1995. Thus, the court below was just to have determined that the defendant's preferential right to collateral security after the registration of establishment was completed, and there was no error

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Justices Lee Don-hee (Presiding Justice)