Claims for return of deposit for lease of a small lessee who has the right of priority repayment as prescribed by the Housing Lease Protection Act shall take priority in tax claims.

In light of the fact that the claims for the return of the lease deposit of small-sum lessee who has the right of priority repayment as prescribed by the Housing Lease Protection Act are priority over the taxation claims, and the details of the payment of the balance or move-in report cannot be seen as abnormal, the lessee cannot be deemed to have entered into a lease contract

Article 24 of the National Tax Collection Act

2018 Ghana 132852 Demurrer against distribution

Gyeong Kim

Republic of Korea and 1

January 15, 2019

January 29, 2019

1. 서울동부지방법원 2017타경5○○○○ 부동산임의경매사건에 관하여 같은 법원이 2018. 9. 19. 작성한 배당표 중 피고 ▲▲보험 주식회사에 대한 배당액 294,850,554원을 266,422,746원으로, 피고 대한민국에 대한 배당액 3,572,192원을 0원으로, 원고에 대한 배당액 0원을 32,000,000원으로 각 경정한다.

2. The costs of lawsuit are assessed against the Defendants.

Cheong-gu Office

Order 1)

1. Determination as to the cause of claim

(a) Facts of recognition;

The following facts are not disputed between the parties, or may be acknowledged by adding the whole purport of the pleadings to the entries in Gap evidence 1 to 4, and Eul evidence 2.

(1) 서울 ○○구 ○○동 1○○-○○ ○○빌 제○○○호(이하 '이 사건 부동산'이라 한다)는 마◈◈의 소유인데, 피고 ▲▲보험 주식회사의 신청으로 2017. 8. 29. 임의경매개시결정이 내려졌고, 이 사건 부동산은 박▣▣에게 매각되어 2018. 8. 21. 소유권이전등기가 마쳐졌다.

(2) On June 16, 2017, the same same body and the Plaintiff entered into a lease agreement (hereinafter “instant lease agreement”) with the lease deposit of KRW 34,00,000,00 with respect to the instant real estate without any rent, and the term of the lease from June 29, 2017 to June 29, 2019, and obtained a fixed date after completing the move-in report on June 29, 2017.

(3) 당시 이 사건 부동산에는 채권자 박▼▼의 청구금액 50,000,000원의 가압류, 피고 대한민국(세무서)의 압류, 피고 대한민국(○○세무서)의 압류, 서울특별시 ○○구의 압류, 채권자 ○○은행 주식회사의 청구금액 86,176,048원의 가압류, 2015. 2. 25. 설정된 근저당권자 피고 ▲▲보험 주식회사, 채무자 마◈◈, 채권최고액 310,800,000원의 근저당권설정등기가 설정되어 있었다.

(4) 서울동부지방법원은 2018. 9. 19. 배당할 금액에서 이자와 집행비용을 공제한 298,422,746원 중 294,850,554원을 1순위로 신청채권자(근저당권)인 피고 ▲▲보험 주식회사에게, 남은 3,572,192원을 2순위로 압류권자(비당해)인 피고 대한민국(세무서)에 각 배당하는 내용으로 배당표(이하 '이 사건 배당표'라 한다)를 작성하였다.

B. Determination

위 인정사실에 의하면 원고는 주택임대차보호법에 의한 소액임차임으로서 임대차보증금 중 원고가 구하는 바에 따라 32,000,000원을 최우선 변제 받을 권리가 있고, 그럼에도 원고에게 배당하지 않은 이 사건 배당표는 위법하므로 특별한 사정이 없는 한 이 사건 배당표 중 피고 ▲▲보험 주식회사에 대한 배당액 294,850,554원을 266,422,746원으로, 피고 대한민국에 대한 배당액 3,572,192원을 0원으로, 원고에 대한 배당액 0원을 32,000,000원으로 각 경정하여야 한다.

2. Judgment on the defendants' assertion

A. Whether the lessee is the most lessee

The Defendants asserted that the exclusion from the distribution of dividends is lawful, as the Plaintiff did not have actually resided in the instant real estate, merely because it was a lessee’s external tenant as the Plaintiff had resided in the said real estate.

However, there is no evidence to acknowledge this, and instead, if the purport of the entire pleadings is added to each of the statements in Gap evidence Nos. 5 through 7 (including paper numbers), the plaintiff completed the move-in report on the real estate in this case on June 29, 2017, the plaintiff moved in the real estate in this case, was engaged in cleaning and cleaning, and paid the cost to cleaning business, and the account passbook Nos. 3 in Gwangjin-gu Seoul Special Metropolitan City is recognized as having confirmed the actual residence of the plaintiff.

Therefore, this part of the defendants' assertion is without merit.

B. As to the assertion of abuse of Housing Lease Protection Act

The Defendants asserted that since they concluded the instant lease agreement to obtain unjust benefits by abusing the Housing Lease Protection Act that the Plaintiff recognized the right to preferential payment of small-sum lessee, they cannot recognize the right to preferential payment.

Before two months, the Plaintiff entered into a lease contract, and multiple provisional seizure and mortgage was established in excess of the value of the instant real estate at the time, and it is recognized that the lease guarantee amount in this case was lower than the market value at the time.

However, the following circumstances are acknowledged by adding the overall purport of arguments as stated in Gap evidence Nos. 2 and 8, namely, the plaintiff was not a real estate or legal expert, and only known of the Housing Lease Protection Act and the right to preferential repayment during the lease agreement process of this case. The plaintiff was under urgent circumstances such as violence and failure of the division in the lawsuit for divorce with female and female residents. The plaintiff discovered the real estate at the Internet real estate brokerage site and contacted the lessor, entered into a contract with the lessor as a broker for the tenant. Although the provisional attachment on the real estate of this case was established on several occasions, the landlord did not know that the provisional attachment on the real estate of this case would have been performed for a considerable portion and continued repayment, so it could not be concluded that the plaintiff would immediately commence the auction procedure at the time of the lease agreement, and the plaintiff could not be seen as being aware of the fact that the plaintiff could not have been aware of the fact that the tenant could not have known, or could not easily have known, that the tenant could have been entitled to security interest in the lease contract of this case.

3. Conclusion

The plaintiff's claim is justified, and it is so decided as per Disposition.

1) The amount stated in the complaint appears to be an error in calculation.