Bankruptcy Trustee of Nonparty 5 Co., Ltd. (Attorney Gyeong-ho et al., Counsel for the plaintiff-appellant)

Defendant 1 and two others

January 25, 2006

Daegu District Court Decision 2004Gadan2938 Decided July 27, 2005

1. The plaintiff's appeal against the defendants is dismissed in entirety.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the court of first instance shall be revoked. With respect to the case of auction for real estate rent in Daegu District Court 2003 Matachi5834, July 8, 2004, the amount of dividends to Defendant 1 shall be deleted from KRW 7,491,423, the amount of dividends to Defendant 2 against Defendant 8,486,243, the amount of dividends to Defendant 2 against Defendant 3, and KRW 6,386,649, respectively, and the amount of dividends to Plaintiff 22,516,096 shall be corrected to KRW 44,80,411.

1. Facts of recognition;

The following facts are either disputed between the parties or acknowledged by the purport of Gap evidence 1, 2, 3, Eul evidence 1, 2, 3, 3-1, 3-2, 3-1, 2, 4-12, 13-1, 2, and 3-2, and non-party 3's testimony and oral argument.

A. Each apartment unit listed in the separate sheet (hereinafter collectively referred to as "each apartment unit of this case", and in the case of a separate name, the separate term "Nos. 403, 404, and 501 of this case") was commenced on June 10, 1994 in accordance with the building permit issued on June 10, 199 and approved for use on April 10, 1997, and the registration of ownership was completed in the name of Nonparty 1 and 2, the owner of the building on April 17, 1997. The registration of ownership was completed in the name of the non-party 1 and 2, the owner of the building on April 17, 1997. The title section of each apartment unit of this case, which is an aggregate building, is written as "Gyeongbuk-do, Goyeong-dong (number 1 and 2 omitted)", and the title section of the aggregate building register is also written in the same purport.

B. In the case of Defendant 1:

(1) On December 27, 1996, before approval for the use of each apartment of this case, the Defendant entered into a lease agreement with Nonparty 1 on December 27, 1996, stating that the object of the lease was “(25 million won) and 12 months from the lease deposit, i.e., the object of the lease (403 omitted), i.e., the object of the lease (403 number 1 omitted), and resided on delivery of the instant No. 403 at around that time. Around January 16, 1997, the Defendant obtained a fixed date from the registry office (No. 1).

D. Meanwhile, on February 17, 1997, the non-party 4, the defendant's wife, reported the moving-in report, which stated the head of the household as the same defendant in the office of Heung-dong Office of Heung-dong, Seoul and submitted to the non-party 3, etc., where the public official in charge of resident registration was requested to correct the lot number and delete the part of the number of the move-in report, and submitted the move-in report to the non-party 4 (2/2) by correcting the moving-in report's address as "No. 5, while on August 27, 1996, the moving-in report was divided from the land (number 1 omitted) in the same paragraph (number 3 omitted), and the above public official in charge and the above public official in charge seems to have been divided.

The defendant's resident registration card, as mentioned above, was entered on February 17, 1997, as "Song-dong (number 3 omitted) (2/2) and entered on March 8, 1997, as "Song-dong (number 1 omitted) (2/2) and on March 11, 1999, as "Song-dong (number 1 omitted)" on the ground of the change of special address again, on March 11, 1999, the defendant's resident registration card was entered as "Song-dong (number 1 omitted) (2/2) 403" on the ground of the change of special address (No. 4-1 of evidence A).

C. In the case of Defendant 2

(1) On December 20, 1996, the Defendant: (a) leased No. 404 of the instant case from Nonparty 1 on December 20, 1996; (b) concluded a lease agreement with Nonparty 1 stating “No. 404 of the instant case’s lease term of 12 months; and (c) around that time, the leased object entered into the lease agreement with “No. 404 of the ○○○ Housing, Seo-dong, Seoul Special Metropolitan City (number 1 omitted); and (d) obtained a fixed date from the registration office around March 11, 1997 (Evidence No. 8).

B. On the other hand, on January 16, 1997, the defendant filed a report on the transfer to the No. 404 of this case at the office of Heung-dong on the same day. The defendant's resident registration record card was entered on January 16, 1997 as "Seoul-do Heung-dong (number 3 omitted) (2/2)" and on March 8, 1997, on the ground that the actual lot number was corrected on March 8, 1997, it was again entered as "Seoul-do Heung-dong (number 1 omitted) (2/2 omitted)" and on April 18, 1999, on the ground that the special address was changed, it was again entered as "No. 9 (No. 9).

(d) In the case of Defendant 3:

(1) On March 6, 1996, the Defendant: (a) set the lease deposit of No. 501 from Nonparty 1 for the lease deposit of KRW 23 million; and (b) set the lease term of KRW 24 months; (c) made a lease agreement with the object of the lease stipulated “○○○APT 501, Seoul Special Metropolitan City (number 3 omitted); (d) later, the number of the lot number in the lease agreement was corrected from “(number 3 omitted)” to “(number 1 omitted)” to “(number 1 omitted); and (e) obtained a fixed date from the registry around April 11, 1996 (No. 6).

D. On the other hand, on March 25, 1996, the defendant filed a report on the transfer from the office of his office of his office of his office into the instant No. 501. The defendant's resident registration card was written on March 25, 1996 as "Seoul-do Seoul-dong (number 3 omitted) (2/2 omitted)" and was written on May 16, 1997 on the ground that the actual parcel number correction was made on May 16, 1997 (number 1 omitted), ○○ apartment apartment 501 (number 4-3 of the evidence No. 4).

E. On Feb. 27, 2004, the head of Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong Dong around Dong-si entered the registration card as described in the above B, C, and D, and in case of multi-family housing pursuant to the Enforcement Decree of the Resident Registration Act, the lot number shall be stated next to the name of multi-family housing based on the building management ledger and the number of units. On Feb. 17, 1997; January 16; and March 25, 1996, the defendants made a move-in report and issued a confirmation to the defendants that only the lot number is stated on the wind that does not have the building management ledger as to each of the apartment of this case (Evidence No. 12).

F. On April 17, 1997, the non-party 5 Co., Ltd. (the plaintiff was appointed as bankruptcy trustee on the same day by the ruling of the Daegu District Court on August 30, 2002) filed an application for voluntary auction of each apartment of this case at Daegu District Court around 2003,5834, which had completed the registration of creation of a neighboring mortgage, with respect to each apartment of this case, which is KRW 33 million with respect to the maximum debt amount, and filed an application for voluntary auction at KRW 45,11,431, which had been calculated by subtracting the execution expenses, etc. on the date of open distribution on July 8, 2004. The auction court, in the procedure of voluntary auction, prepared a distribution schedule of KRW 231,020 with respect to the non-party 1,516,096 won with the plaintiff and the defendants as the order of priority 222,516,096 won, KRW 17,491,42384,363636

G. In the above auction procedure, when the Plaintiff excluded the proceeds from the sale of each apartment building of this case from the distribution of dividends, the Plaintiff filed a lawsuit of demurrer against the distribution of this case on July 14, 2004, which was within seven days from the date when the Plaintiff stated an objection to the whole amount of dividends against the Defendants on the date of distribution.

2. Judgment on the plaintiff's claim

A. The plaintiff and the defendant's assertion

The plaintiff asserts that since the resident registration that was made at the time when the defendants leased each apartment of this case did not contain the number of houses, it is not effective to publicly announce the lease, and since the non-party credit cooperative entered the number of houses in the resident registration that was made after April 17, 1997 when the registration of the establishment of the neighboring apartment of this case was completed, it cannot be asserted against the plaintiff or the right to preferential payment. Thus, the amount of dividends distributed to the defendants in the above distribution schedule should be corrected to be distributed to the plaintiff.

As to this, the defendants filed a move-in report with the correct lot number and number of each apartment of this case prior to the completion of the registration of creation of a mortgage in the name of the non-party credit cooperative, and received the fixed date, but the public official in charge of resident registration of the Dong office made a move-in report with the name of the wrong lot number after removing the number of houses on the wind that requires the correction of the lot number and deletion of the number of houses. In addition, the non-party credit cooperative, as the non-party credit cooperative, fully recognizes the lease relationship of the defendants at the time of the completion of the above establishment registration, so the defendants filed a move-in report with the opposing power on February 17, 1997; January 16, 199; and March 25, 1996, the above distribution schedule was duly prepared.

B. Determination

(i) The address of the documents related to resident registration shall be indicated in the order of the Special Metropolitan City, Metropolitan City, Do, Si, Gun, autonomous Gu, Gu (referring to a non-autonomous Gu), Eup, Myeon, Dong, Ri, and lot number. In the case of multi-family housing under the Housing Act, the name of the multi-family housing based on the building management ledger, etc. shall be indicated after the lot number in the case of multi-family housing (Article 9(3) of the Enforcement Decree of the Resident Registration Act). If the leased house is a multi-family housing, the tenant cannot obtain the opposing power under Article 3 of the Housing Lease Protection Act because the tenant's resident registration cannot be an appropriate method of public announcement as to the existence of the right of lease. However, although the tenant reported the move-in of the number in the resident registration card, but if the tenant registered the number of houses through the procedure of change of the number of special addresses after the moving-in registration card, the tenant shall acquire the opposing power at the time of moving-in registration (see Supreme Court Decision 91Da181848, 25, 208, 2004, etc.).

D. In light of the foregoing legal principles, Defendant 1, first of all, entered the move-in report on February 17, 1997 by stating the place of move-in on February 17, 1997 as “Seoul-si, Chungcheongnam-dong, (number 1 omitted) (2/2), ○○ apartment 403,” but the moving-in report was made by Nonparty 3, etc., in charge of resident registration of the public official who is responsible for resident registration of the office of the Dong-dong, Seo-gu, Seo-si, Seo-gu, Seoul-si, demanded to correct the lot number by “(number 3 omitted)” without any special address in the resident registration program. Thus, Defendant 1’s move-in report became effective as of February 17, 1997, which was submitted the first move-in report on the move-in report. It satisfies the opposing power of the Plaintiff.

Next, it is evident that Defendant 2, 3 entered the number of houses in the lease contract as to No. 404 and 501 of this case. In light of the fact that Defendant 1 was demanded to delete the number of houses as seen in the case of Defendant 1 due to the difficulties in the performance of his duties, it is reasonable to view that the address of Defendant 2, 3, at the time of the moving-in report, “No. 1 omitted) 2, 403, 403, 2, 401, 7, 9, 4, 9, 9, 9, 4, 9, 9, 9, 9, 9, 9, 9, 9, 9, 9, 9, 9, 9, 4, 9, 9, 9, 9, 1, 3, 4, 97, 96, 9, 9, 9, 4, 96, 3, 196, 9, 3, 196, 3.

3. Conclusion

Therefore, all of the plaintiff's claims against the defendants under the premise that the establishment registration of a neighboring mortgage in the plaintiff's name was completed prior to the defendants' establishment of the opposing power as to each apartment of this case. The judgment of the court of first instance is legitimate in conclusion, and it is so decided as per Disposition.

[Attachment Form Omission of Indication of Real Estate]

Judges Oi Tax Rate (Presiding Judge) Kim Jong-sung