Whether a lessee who has made a lease registration under the order of lease registration falls under a creditor entitled to receive a distribution even if he/she fails to make a demand for distribution corresponding to the creditor prescribed by Article 148 subparagraph 4 of the Civil Execution Act (affirmative)

A lessee who has registered a right of preferential reimbursement pursuant to the order of lease registration has the right of preferential reimbursement, and the above registration of the right of lease is primarily intended to maintain the opposing power of the king or the right of preferential reimbursement. As such, in a case where the above registration of the right of lease is registered prior to the registration of the first order of commencement of auction, pursuant to Article 148 Subparag. 4 of the Civil Execution Act, which provides for the scope of creditors entitled to dividends, “a creditor who has been registered prior to the registration of the first order of commencement of auction and is extinguished by the sale, as a creditor who has the right of preferential reimbursement and has the right of preferential reimbursement extinguished by

Articles 3-3 (5) and 3-5 of the Housing Lease Protection Act, Article 91 (4) and subparagraph 4 of Article 148 of the Civil Execution Act

[Plaintiff-Appellant] Plaintiff 2005Da4529 decided June 9, 2005 (Gong2005Ha, 1120)

Plaintiff

National Bank Co., Ltd. (Law Firm Rate, Attorneys Park Young-young et al., Counsel for the defendant-appellant)

Gwangju District Court Decision 2004Na10646 Decided May 18, 2005

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

According to the reasoning of the judgment below, on December 12, 196, the Plaintiff: (a) leased 15 square meters among the above housing units to the Defendant on 7,00,00; (b) on December 21, 1996; (c) on July 27, 199; (d) filed a move-in report with the Defendant on the same date; (c) on August 31, 1999, the Defendant received an application for distribution of KRW 11,70,00,00 for the instant housing units; and (d) on the 36th anniversary of the amount of distribution of the above housing units, the amount of distribution of KRW 15 to the Defendant on 16th of the above 7th of the distribution date; and (d) on the 196th of the fixed date of distribution; and (e) on the 196th of the auction procedure, the Plaintiff obtained the registration of the said amount of distribution from the Gwangju District Court on 26th of December 126, 19996.

Article 3-3 (5) of the Housing Lease Protection Act provides that "if a right of lease has been registered by the execution of the order of lease registration, the lessee shall obtain the opposing power as provided for in the provisions of Article 3 (1) and the preferential right of repayment as provided for in the provisions of Article 3-2 (2): Provided, That if the lessee has already acquired the opposing power or preferential right of repayment prior to the registration of the right of lease, such opposing power or preferential right of repayment shall be maintained, and even if the requirements for opposing power or preferential right of repayment as provided for in the provisions of Article 3 (1) have been lost after the registration of the right of lease have been made, such opposing power or preferential right of repayment shall not be lost." Article 3-5 of the Housing Lease Protection Act provides that "if an auction as provided for in the Civil Execution Act has been made on the house of lease, the right of lease shall be extinguished by the auction of the house of lease: Provided, That this shall not apply to a lessee who has registered the right of lease by the order of lease registration, and the registration of the said right shall be deemed to have become extinct separately by the creditor prior to receive the decision of auction.

In light of the above legal principles and records, we affirm the above judgment of the court below as just, and there are no errors in the misapprehension of legal principles as to the scope of persons entitled to participate in the distribution without a demand for distribution or demand for distribution, as alleged in the grounds of appeal.

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

Justices Shin Shin-chul (Presiding Justice)