In cases where a lessee with opposing power increases a security deposit by an agreement with a lessee after the establishment registration of a mortgage, whether a successful bidder may oppose the owner of the building based on the mortgage regarding the increased portion out of the security deposit (negative)

If a lessee with opposing power agrees to increase the lessor and the deposit and pays the excess portion after the registration of establishment of a mortgage, priority can be asserted against the mortgagee with the lease acquired before the registration of establishment of a mortgage, as well as the agreement to increase the lease deposit between the owner of a building and the owner of a building after the registration of establishment of a mortgage can only be effective between the parties to the agreement as a result of the failure of the owner of the building to engage in a legal act detrimental to the mortgagee, and cannot be asserted against the mortgagee. Therefore, the lessee can only assert that the name of the building which was mortgaged on the basis of the above mortgage cannot be clarified until the deposit for lease was repaid, and cannot be asserted against the owner with the increased lease deposit after the registration of establishment of a mortgage.

Article 3 of the Housing Lease Protection Act

Seoul Trust Bank Co., Ltd., Counsel for the defendant-appellant and one other

Kim beneficiary and 1 other

Seoul Civil District Court Decision 89Na18978 delivered on March 27, 1990

The judgment of the court below is reversed.

The case is remanded to Seoul High Court.

According to the reasoning of the judgment below, the court below acknowledged that the mortgage that was the basis for which the plaintiff acquired a successful bid was registered on October 25, 1985, and at that time, the defendants entered into a housing lease contract with the building owner and deposited 21 million won for the building owner, but the lease period remains for seven months. The defendants agreed on June 21, 1986, which was after the date of the registration of the mortgage, to increase the lease deposit to 24 million won with the building owner, and thereafter, the lease deposit was deposited in 3 million won more than the above mortgage, and recognized that the defendants' housing lease right was superior to the above mortgage, so the defendants can refuse the claim for the name of the building until the plaintiff was paid the deposit 24 million won.

However, as recognized by the court below, the agreement between the owner of the building and the owner of the building to increase the lease deposit after the registration of the establishment of the mortgage can only be asserted against the mortgagee as the priority of the lease acquired by the Defendants prior to the registration of the establishment of the mortgage, as well as the agreement between the owner of the building and the owner of the building cannot perform a legal act detrimental to the mortgagee, and it cannot be asserted against the mortgagee

Therefore, the defendants can only claim that the plaintiff's name of the building in this case can not be ordered to order the building until the lease deposit is repaid in 21 million won, and it cannot be asserted against the plaintiff as to the increased lease deposit after the registration of establishment.

The judgment of the court below is erroneous in the misapprehension of legal principles as to the effect of an agreement to increase the lease deposit after the registration of establishment of a mortgage on the mortgagee, which affected the conclusion of the judgment.

The appeal pointing this out is with merit, and the judgment of the court below is reversed and the case is remanded to the court below for a new trial. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-sung (Presiding Justice)