Whether a lessor is exempted from the entire prohibition obligation in cases where a lessor sells the relevant house after the seizure and assignment order of the lease deposit claim of a lessee who meets the requirements for counterclaim under Article 3 (1) of the Housing Lease Protection Act becomes final and conclusive (affirmative)

Where the attachment and assignment order of the lessee’s claim for the return of the lease deposit of the lessee who meets the requirements for counterclaim under Article 3(1) of the Housing Lease Protection Act becomes final and conclusive and the lessee’s claim for the return of the lease deposit is transferred to the enforcement creditor, the lessor, who is the garnishee, is merely liable to the execution creditor for the obligations owed to the lessee, and the lessor has the right to sell them to the third party as the owner of the house, which is the object of lease. As above, in the event the lessor, who is the owner, sells the relevant house, is exempted from the obligation to pay the deposit to the entire creditor under Article 3(2) of the Housing Lease Protection Act, and the

Article 3 (2) of the Housing Lease Protection Act, Article 229 of the Civil Execution Act

Plaintiff

Defendant (Attorney Jeong-sung et al., Counsel for defendant-appellant)

Daejeon District Court Decision 2004Na12125 Delivered on April 8, 2005

The judgment below is reversed, and the case is remanded to Daejeon District Court Panel Division.

According to the reasoning of the judgment below, the court below acknowledged the following facts: the plaintiff received 30,00,000 won from the non-party 1 and the non-party 2's 30,000 won deposit from the non-party 1 and the non-party 2; the order was finalized on December 1, 201; the defendant transferred the house of this case, which is the leased real estate, to the non-party 3 on September 17, 2002; the ownership transfer registration was made in the name of the non-party 3 on June 12, 2003; the non-party 1 and the non-party 2 received from the non-party 3 on June 2, 200 the remaining 26,8,80,000 won from the non-party 1 and the non-party 2's transfer of the leased real estate to the non-party 3 and the non-party 2's transfer of the ownership of this case to the non-party 30,0008,000 won deposit.

However, in the event that the attachment and assignment order for the claim for the return of lease deposit becomes final and conclusive and the claim for the return of lease deposit of a lessee is transferred to the execution creditor, a lessor, a garnishee, is liable to the execution creditor for the debt incurred to the lessee, and the lessor holds the right to sell it to a third party as the owner of the house, which is the object of lease. As such, in the event the lessor, who is the owner, sells the relevant house, is exempted from the obligation to pay the deposit to the whole creditor pursuant to Article 3(2) of the Housing Lease Protection Act, so the Defendant, a lessor, is not obligated to pay the entire amount.

Nevertheless, the judgment of the court below which accepted the plaintiff's primary claim by determining that the defendant is liable to pay the whole amount of tax, is erroneous in the misunderstanding of legal principles as to the transfer of leased real estate meeting the requirements for counterclaim under the Housing Lease Protection Act, which affected the conclusion of the judgment. Therefore,

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Zwon (Presiding Justice)