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The judgment of the court below is reversed, and the case is remanded to the District Court Panel Division.
Reasons
The grounds of appeal are examined.
1. On the premise that the Plaintiff is a genuine lessee, the lower court determined that “the Plaintiff has the right to preferential reimbursement pursuant to Article 3-2(2) of the Housing Lease Protection Act on October 24, 2007, which is the following day, by having the delivery and resident registration of the instant house on October 23, 2007 at the same time with the fixed date indicated in the lease agreement document, and acquired the right to preferential reimbursement pursuant to the premise of Article 3-2(2) of the Housing Lease Protection Act on October 24, 2007, the lower court has the right to receive KRW 30 million from the proceeds from realizing the auction procedure.”
2. However, it is difficult to accept the above determination by the court below for the following reasons.
Although the lease to which the Housing Lease Protection Act applies is not limited to cases where a lease contract is concluded between a lessee and a lessor who is the owner of a house, a lessor who is entitled to legally conclude a lease contract on the relevant house is required to enter into a lease contract (see, e.g., Supreme Court Decision 2007Da38908, 38915, Apr. 10, 2008).
However, according to the reasoning of the judgment below, the plaintiff entered into a lease agreement with C on October 13, 2007 with the highest bidder in the previous auction procedure, and completed the moving-in report on the same day after receiving the instant house from C who was delivered the instant house from F of the former lessee F of the same month, and completed the move-in report on the same day, and it was confirmed that C paid the sale price in full and completed the registration of the establishment of a neighboring mortgage to the defendant. However, there is no record to prove that C had a legitimate right to lease at the time of the said lease except that C is the highest bidder.
Nevertheless, the court below delivered the instant housing on October 23, 2007 from C, which was merely the highest bidder who did not pay the purchase price, and the moving-in report.