Where the main purpose of a lease agreement is not to profit from using a house, but to recover an existing bond by being protected as a small lessee, whether a lease agreement can be protected as a small lessee under the Housing Lease Protection Act (negative)

The legislative purpose of the Housing Lease Protection Act is to ensure the stability of the residential life of citizens by prescribing special cases on the Civil Act with respect to residential buildings (Article 1). Article 8 (1) of the Housing Lease Protection Act provides that the lessee may be paid a specified amount of the security deposit in preference to other secured creditors. In the case of small-sum lessee, even if the security deposit is small-sum lessee, it is a larger property, and thus, it is reasonable to guarantee the recovery of the security deposit even if the status of other secured creditors is harmed at least in the case of small-sum lessee, and it is an exception to the general provisions of the Civil Act. In light of such legislative purpose and purpose of the system, it is reasonable to ensure the recovery of the security deposit in the case of small-sum lessee. In light of the above legislative purpose and purpose of the system, even if the obligee entered into a lease contract with the debtor with respect to the housing owned by the debtor and resided therein, it is not intended to use and benefit from the actual purpose of the lease contract, and in fact, if there

[1] Articles 1 and 8 (1) of the Housing Lease Protection Act

Industrial Bank of Korea (Seoul Law Firm, Attorneys Kim Young-joon et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Han River, Attorneys Choi Jae-cheon et al., Counsel for the defendant-appellant)

Seoul District Court Decision 99Na98485 delivered on February 2, 2001

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

The grounds of appeal are examined.

The legislative purpose of the Housing Lease Protection Act is to ensure the stability of the residential life of citizens by prescribing special cases on the Civil Act with respect to residential buildings (Article 1). Article 8 (1) of the Housing Lease Protection Act provides that the lessee may be paid a specified amount of the security deposit in preference to other secured creditors. In the case of small-sum lessee, even if the security deposit is small-sum lessee, it is a large amount of property, so it is reasonable to guarantee the recovery of the security deposit even if the status of other secured creditors is harmed at least in the case of small-sum lessee, and it is an exception to the general provisions of the Civil Act. In light of such legislative purpose and purpose of the system, even if the obligee entered into a lease contract with the debtor with respect to the housing owned by the debtor and resided therein after the moving-in report was completed, the main purpose of the lease contract is not to use the housing, and in fact, if there was a main purpose to recover the claim prior to the mortgagee, such tenant cannot be protected as a small-sum lessee under the Housing Lease Protection Act.

According to the reasoning of the judgment below, the court below, based on adopted evidence, concluded a lease contract with the non-party as KRW 15 million on July 22, 1997, KRW 10 million, KRW 30 million on October 30, 1997, and KRW 70 million on December 1, 1997, but it was impossible for the non-party to receive the payment of the above non-party's house, which was provisionally seized the above non-party's house on December 24, 1997. The above non-party and the non-party on December 20, 1997, determined that the lease deposit for KRW 15 million on the non-party's housing among the above non-party and the non-party's housing of this case was occupied in the housing of this case without payment, and completed a move-in report on December 27, 197, which was concluded by the non-party and the non-party's lessee on December 27, 1997.

In light of the records, the fact-finding of the court below is just and acceptable. If the lease contract of this case was merely concluded as a means to collect existing claims, as determined by the court below, its main purpose is not to profit from the use of the house, but to recover the claims in preference to the senior secured party by being protected as a small-sum lessee, so in light of the above legal principles, the defendant cannot be protected as a small-sum lessee in light of the above legal principles. The court below's decision to the same purport is just, and there is no illegality of erroneous interpretation of the contents of the lease contract in the judgment below. Furthermore, the court below did not determine the lease contract of this case just on the ground that the lease deposit of this case was not actually received, but determined that the lease contract of this case was concluded as a means to collect claims, considering the facts as stated in the judgment of the court below, such as the relation to the existing claims, the amount of the lease deposit, and the provisional seizure

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 on the bench.

Justices Seo-sung (Presiding Justice)