Whether a housing lessee who has completed delivery and resident registration after the establishment of the senior collateral security can oppose the successful bidder of the auction at the request of the junior mortgagee; or

Where a housing lessee completes the delivery of a house and resident registration and then establishes a subordinated mortgage thereafter, the successful bidder shall acquire the ownership of the object in the state of the establishment of the subordinated mortgage at the time of application for auction by the junior mortgagee, even if the successful bidder obtains the ownership of the object in the state of the establishment of the subordinated mortgage on the registry, so even if the lessee satisfies the requirements for counterclaim against the junior mortgagee, unless it is impossible to oppose the senior mortgagee, the successful bidder of the auction conducted upon application by the junior

Article 3 of the Auction Act, Article 3 of the Housing Lease Protection Act

Seoul High Court Decision 80Ma491 delivered on December 30, 1980 (Article 608(3) of the Civil Procedure Act, Article 601 of the Civil Procedure Act, Article 608(3) of the Civil Procedure Act, Article 601 of the Civil Procedure Act, Article 608(3) of the Civil Procedure Act, Article

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Defendant 1 and one other

1. The Plaintiff (Counterclaim Defendant) and the Seoul Yeongdeungpo-gu (Sevis omitted omitted), and the Defendant (Counterclaim Plaintiff) 1 and the Defendant (Counterclaim Plaintiff) 1 successively connected each point of 10,8,7,6,4,22,15,13,11, and 45.7 square meters in total, 15,22,3,3,21,20,20,219,18,215 each of the items indicated in the separate drawings (f), (g), and (h) are located in the line that connects each point of 15,22,3,21,20,20,219,2, and 15 in sequence.

2. The defendant (Counterclaim plaintiff)'s counterclaim is dismissed.

3. The costs of litigation shall be borne by the Defendant (Counterclaim Plaintiff) through the principal lawsuit and counterclaim.

4. Paragraph 1 can be provisionally executed.

The main lawsuit is identical with the disposition. The plaintiff (the counter-party; hereinafter the plaintiff) pays 4,00,000 won to the same defendant, at the same time when he receives an order from the defendant (the counter-party; hereinafter the defendant only) for the total of 45.7 square meters in the part of (a), (b), (c), (d), (e) and (e) of the order from the defendant 1, and at the same time he receives an order for 10,00,000 won from the same defendant, and at the same time he receives an order for 13.5 square meters in total from the defendant 2.

The costs of lawsuit shall be borne by the plaintiff and a declaration of provisional execution.

1. Judgment on the plaintiff's main claim

On December 30, 1985, the Plaintiff was awarded a successful bid for a 64.0 square meters of the house 64.0 square meters from the land of Yeongdeungpo-gu Seoul Metropolitan Government (detailed number omitted) which was originally owned by Nonparty 1 from the Southern Branch Branch of the Seoul District Court (hereinafter “the building of this case”) and paid the price in full around that time, and thus, the building of this case was owned by the Plaintiff. The fact that the Defendants occupied the part as stipulated in paragraph 1 of each of the main text of the building of this case does not conflict between the parties.

As to the plaintiff's request for the cancellation of ownership, the defendants are entitled to oppose the plaintiff by the right of lease pursuant to the Housing Lease Protection Act, since the plaintiff could not oppose the plaintiff because the non-party 1, who was the former owner of the right of collateral security prior to the establishment of the right of collateral security (the right of collateral security). Thus, the defendants can not oppose the plaintiff by the right of lease until the plaintiff is paid the lease deposit. Thus, the defendants can not oppose the plaintiff's request for the sale of collateral security (the right of collateral security), Eul's No. 1, Eul's No. 2, Eul's No. 3, and Eul's No. 4, and Eul's No. 5, the defendant's testimony (the right of collateral security) of the non-party 2, and the non-party 1's testimony of the above non-party 2, and the plaintiff's non-party 1, who had moved the right of collateral security at the time of collateral security (the right of collateral security was not trusted from each other).

Next, the Defendants asserted that the Plaintiff’s testimony of Nonparty 2 and 1 (excluding the portion of trust in each case) of the witness Nonparty 2 and the Defendants (excluding the part of trust in each case) that corresponds to the fact that there was an agreement as described above between Nonparty 1 and Nonparty 1, and that there was no other evidence to prove otherwise, they cannot be accepted as without merit, since the Plaintiff entered into such an agreement with the Defendants on January 10, 1986, directly with the Defendants, and thus, the Plaintiff cannot respond to the Plaintiff’s request until the deposit is refunded.

Therefore, in this case where there is no evidence of assertion that the Defendants had a legitimate right to possess each of the respective possession parts of the building of this case, the Defendants are obliged to order the Plaintiff to order each of the possession parts of each of the building of this case.

2. Determination as to the defendants' counterclaims

The summary of the grounds for the counterclaim of this case is that the Defendants are the lessee who can oppose the Plaintiff, the successful bidder, or the Plaintiff agreed with Nonparty 1 or the Defendants to refund the lease deposit of the Defendants. As such, the Plaintiff is obliged to order each of the possession parts of the instant building from the Defendants and return the lease deposit to the Defendants at the same time. However, as seen in the judgment on the main claim, the aforementioned assertion by the Defendants cannot be accepted as without merit.

3. Conclusion

Therefore, the plaintiff's main claim is justified, and all of the defendants' counterclaims are dismissed without merit. It is so decided as per Disposition by the application of Article 89 of the Civil Procedure Act, Article 199 of the same Act, and Article 6 of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings, etc. to a provisional execution declaration.

Judges Cho Young-hee (Presiding Judge)