[1] Whether the Housing Lease Protection Act applies to cases where a lease contract is concluded with a person without legitimate right to lease (negative)

[2] In a case where Gap entered into a housing lease contract with Eul who was in the status of the highest bidder Eul during a voluntary auction procedure and completed a move-in report and received a fixed date on the lease contract, and Eul paid the sale price in full and completed the registration of the establishment of a neighboring mortgage to Byung Co., Ltd., the case holding that the court below erred in the misapprehension of legal principles, etc. in holding that Gap acquired the preferential right to payment under Article 3-2

[1] 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 has the authority to lawfully conclude a lease contract on the house is required to enter into a lease contract.

[2] In a case where Party A entered into a housing lease contract with Party B who was in the status of the highest bidder in a voluntary auction procedure and completed a move-in report and received a fixed date on the lease contract, and Party B paid the sale price in full and completed the registration of the establishment of a neighboring mortgage to Party C, the case holding that the court below erred in the misapprehension of legal principles in holding that Party A acquired preferential right to payment as stipulated in Article 3-2 (2) of the Housing Lease Protection Act by acquiring a move-in report and a fixed date only from Party B who was merely the highest bidder who did not pay the sale price, even though there is no evidence to prove that Party B had the legitimate right to lease at the time

[1] Article 2 of the Housing Lease Protection Act / [2] Article 3-2 (2) of the Housing Lease Protection Act

[1] Supreme Court Decision 2007Da38908, 38915 decided Apr. 10, 2008 (Gong2008Ha, 1107)

Plaintiff

The Bankruptcy Trustee of the New Savings Bank, a bankrupt bank's lawsuit taking over the lawsuit (Law Firm Shin, Attorneys Lee Chang-hoon et al., Counsel for the plaintiff-appellant)

Suwon District Court Decision 201Na9267 decided September 13, 2012

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

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, on the following day by having the delivery and resident registration of the instant house and having the fixed date on the lease agreement document at the same time with the delivery of the instant house on October 23, 2007, and having it obtained the right to preferential reimbursement on October 24, 2007, the Plaintiff has the right to be paid KRW 30 million, prior to the Defendant, who completed the registration of establishment of a neighboring mortgage on October 24, 2007.”

2. However, it is difficult to accept the above determination by the court below for the following reasons.

A. 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 has the authority to lawfully conclude a lease contract on the relevant house is required to enter into a lease contract (see Supreme Court Decision 2007Da38908, 38915, Apr. 10, 2008, etc.).

B. However, according to the reasoning of the judgment below, the plaintiff entered into a lease contract on October 13, 2007 with the non-party 1 who was in the position of highest bidder in the previous auction procedure, and completed the moving-in report on the same day after receiving the instant house from the non-party 1 who was delivered the instant house by the former lessee 2 on the 23th of the same month, and completed the moving-in report on the same day, and the non-party 1 paid the sales price on the 24th of the same month and completed the registration of the establishment of a mortgage to the defendant. However, there is no record that the non-party 1 was legitimate right to lease at the time of the said lease except for the highest bidder.

Nevertheless, the court below concluded that the court below, on October 23, 2007, obtained the right to preferential payment on October 24, 2007, 2007, only from Nonparty 1, who was the highest bidder who did not pay the price to the plaintiff, and only obtained the move-in report and the fixed date on October 24, 2007, which is the following day, by acquiring the right to preferential payment from October 24, 2007, because it did not err by misapprehending the legal principles on the legitimate right to lease under the Housing Lease Protection Act, or by failing to exhaust all necessary deliberations (However, whether the plaintiff can receive

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Park Poe-young (Presiding Justice)