Whether a mortgagee of a leased house constitutes a transferee of a leased house under Article 3 (2) of the Housing Lease Protection Act;

Cases where a transferee of a leased house who is deemed to have succeeded to the status of a lessor under Article 3(2) of the Housing Lease Protection Act shall be cases where the right to lease the house or the right accompanying such right is ultimately and finally transferred. Therefore, a person who acquires the ownership of a leased house through sale, donation, auction, inheritance, public collection, etc., shall be deemed to fall under the transferee of the leased house under the said provision. However, in the case of the so-called transfer of a house transferred for security by means of transfer of a house, the ownership of the house is only transferred to the mortgagee on a trust basis for mortgage, and barring special circumstances, the mortgagee is not entitled to the right to use and benefit from the house, and the ownership of the house is not finally and ultimately transferred to the mortgagee, and it is reasonable to view that the mortgagee does not fall under the "transferee" under this Act.

Article 3 (2) of the Housing Lease Protection Act

[Plaintiff-Appellant] Plaintiff 1 and 114 (Gong1987, 632)

[Judgment of the court below]

Defendant Park Jong-chul, Counsel for the defendant-appellant

Daegu District Court Decision 92Na8123 delivered on December 4, 1992

The appeal is dismissed.

The costs of appeal are assessed against the plaintiffs.

The Plaintiff’s attorney’s ground of appeal is examined.

According to the reasoning of the judgment below, the court below found that the housing of this case was originally owned by the non-party, who was the non-party, and was in possession of the non-party and moved in the first floor from the above non-party to the moving-in report, and completed the registration of ownership transfer in the future with respect to the housing of this case in order to secure the defendant's obligation under the partnership agreement. After that, the Industrial Bank of Korea, which was the right to collateral security, went through the voluntary auction procedure for the housing of this case, succeeded to the status of the non-party under the above lease agreement as the transferee of the housing of this case. Since the housing of this case is no longer possible to allow the plaintiff to use and benefit from the housing of this case, the above lease relationship was terminated, and therefore, the defendant was not obligated to return the above deposit to the plaintiff. Thus, the court below decided that the non-party was not obligated to return the housing of this case under the above lease agreement of this case, but the above non-party notified that the contract will be cancelled within a certain period of time, and that the period had not elapsed.

Article 3(2) of the Housing Lease Protection Act provides that the assignee of a leased house (including any other person who succeeds to the right to lease) shall be deemed to succeed to the status of the lessor. The term "leased status" refers to the status of the lessor under the lease contract as the subject of the right and duty vested in the lessor. The term "Succession" means that the status of the lessor under the lease contract existing between the former lessor and the lessee is transferred to the assignee, while the former lessor leaves the lease contract relationship (see, e.g., Supreme Court Decision 86Meu114, Mar. 10, 1987; 86Meu114, Mar. 10, 1987). Thus, the cases where the transferee of a leased house, which is deemed to succeed to the status of the lessor, should be the case where the transferee of the leased house is ultimately and finally transferred the right to lease the house or the right accompanying it, and thus, the so-called transfer of the ownership of the leased house to the mortgagee, barring special circumstances, does not constitute the mortgagee.

However, according to the facts duly established by the court below, the defendant is merely a mortgagee who has completed the registration of transfer of ownership on the instant house for the bond security and cannot be deemed as a transferee of the leased house. Therefore, the plaintiff's claim for the return of the lease deposit on the premise that the defendant is the transferee of the leased house cannot be accepted

The judgment of the court below on the premise that the Defendant, as a mortgagee of the instant house, constitutes the assignee of the leased house as stipulated in Article 3 (2) of the Housing Lease Protection Act, is erroneous in the misapprehension of the above legal principles. However, the court below is just in its conclusion to reject the Plaintiff’s claim, and such erroneous determination does not affect the conclusion of the judgment.

The issue eventually leads to the absence of reason.

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.

Justices Ansan-man (Presiding Justice)