Plaintiff (Law Firm Name, Attorney In-bok et al., Counsel for plaintiff-appellant)

Seogjin Co., Ltd. (Law Firm Jungwon, Attorneys Lee Jong-sung et al., Counsel for the plaintiff-appellant)

September 5, 2018

Daegu District Court Decision 2017Gadan1359 (Main Office), 2018Gadan827 (Counterclaim) Decided April 25, 2018

1. The defendant (Counterclaim plaintiff)'s appeal is dismissed.

2. The costs of appeal are assessed against the Defendant-Counterclaim Plaintiff.

1. Purport of claim

The principal lawsuit: The Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) pays to the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) 70,000,000 won with 15% interest per annum from the delivery date of the real estate indicated in the separate sheet to the date of full payment.

Counterclaim: The plaintiff shall deliver to the defendant the real estate stated in the attached list.

2. Purport of appeal

The part against the defendant in the judgment of the court of first instance is revoked. All of the plaintiff's claims against the defendant are dismissed. The plaintiff delivers real estate in the attached list to the defendant

1. Quotation of the first instance judgment

The reasoning of the judgment of this court is as follows, except for the supplement of the judgment on the argument that the defendant emphasizes in the trial, and thus, it is consistent with the reasoning of the judgment of the court of first instance.

2. Supplementary judgment

A. Summary of the defendant's assertion

If there are circumstances that can be recognized that the tenant is not a house owner and the third party is an occupation mediating the right of lease rather than a resident registration, the lessor is deemed to have the opposing power as a lessee under Article 3(1) of the Housing Lease Protection Act. According to the purport of the Supreme Court Decision 2000Da58026, 58033 Decided that the tenant has the opposing power based on the instant lease agreement against the defendant. However, according to the purport of the Supreme Court Decision 2012Da93794 Decided April 8, 2014, the delivery and move-in report on the apartment of this case by the plaintiff was a lawful publication method concerning the plaintiff's right of lease, and therefore, the opposing power should be deemed to come into existence not "i.e., the time when the party acquired the ownership of the apartment of this case," but "the next day," which is "the right of lease of this case, should be deemed to have come into force against the defendant, who is a subordinate right of lease."

B. Determination

Supreme Court Decision 2012Da93794 Decided the defendant's presentation that the highest price who did not acquire ownership due to the failure to pay a successful bid is leased a house from a bidder, and the tenant with a fixed date has acquired preferential right under the Housing Lease Protection Act on the following day after the delivery of the house and resident registration, and completed the move-in report and received the fixed date, it is confirmed that the tenant cannot be deemed to have acquired the right to preferential payment on the date following the date on which the return of transfer and the fixed date has been lawfully concluded if the lessor with the authority to enter into a lease contract was not a lease. In such a case, it seems that the lessor without the authority is not the purport of confirming that the lessor acquired the right to preferential payment on the following day after the lease without the authority and the lessee has the opposing power or preferential payment right (i.e., whether the lease is based on the "the date on which the lessor acquired the right to lease on the basis of the "the date on which the right to lease was acquired" or not based on the "the date on which the lessor acquired the legitimate right to lease."

3. Conclusion

The first instance judgment is justifiable, and the defendant's appeal is dismissed.

[Attachment]

Judges Lee Young-chul (Presiding Judge)