Prior Industry Development Co., Ltd. (Law Firm Open, Attorneys Jeong Woo-jin et al., Counsel for the defendant-appellant)

Defendant

April 1, 2015

1. All of the plaintiff's claims are dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

(1) On October 24, 2014, the distribution amount of KRW 19,231,104 against the defendant among the distribution schedule prepared on October 24, 2014 with respect to the real estate auction case of Busan District Court Branch Decision 26,93,94 won shall be deleted, and the distribution amount of KRW 7,702,890 against the plaintiff shall be corrected to KRW 26,93,94.

(2) Preliminaryly, the Defendant and Nonparty 1 cancel a lease agreement concluded on September 27, 2013 with respect to the real estate listed in the separate sheet (hereinafter “instant housing”) and delete the amount of dividends of KRW 19,231,104 against the Defendant from the above distribution schedule, and rectify the amount of dividends of KRW 7,702,890 to KRW 26,93,94 from the said distribution schedule.

1. Basic facts

A. On November 21, 2012, the Plaintiff registered the instant housing owned by Nonparty 1 as a collateral with a maximum debt amount of KRW 95,500,119, and the Defendant reported the instant housing as a Korean national residing abroad (Korean national New Zealand) on September 30, 2013.

B. On January 13, 2014, upon the application of the Bank of Korea, which is a first-class mortgagee, the instant house, an auction procedure entered in the purport of the claim was commenced on January 13, 2014. The Plaintiff demanded a distribution as a mortgagee (the amount of claim for distribution is KRW 88,073,765), and the Defendant demanded a distribution as a lessee (the amount of claim for distribution is KRW 2

C. The instant house was sold to the Defendant on October 15, 2014 in the said auction procedure. At that time, three cases of the security right, which was extinguished by the sale, were (i) the right to collateral security of KRW 324,00,000, the maximum debt amount of KRW 324,000,000, which is the right to collateral security of the Bank of Korea on November 21, 2012; (ii) the right to collateral security of KRW 95,500,119, the maximum debt amount of KRW 95,50,000, the right to collateral security of KRW 50,000,000, which is the right to collateral security of the Plaintiff on November 21, 2012; and

D. On October 24, 2014, a court of execution recognized the Defendant as a lessee under the Housing Lease Protection Act, and distributed the amount of KRW 19,231,104 (including KRW 19,000,000) to the Defendant, and made a distribution schedule that distributes KRW 7,702,890 to the Plaintiff.

E. The Plaintiff appeared on the date of distribution and raised an objection to the total amount of the Defendant’s dividends.

[Ground of recognition] Facts without dispute, Gap 1, 3, 4, 7 evidence, Eul 1 (including provisional number), the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

(1) The defendant is the most lessee. ② The lease contract between the defendant and the non-party 1 shall be revoked as a fraudulent act. ③ The Korean national residing abroad has the same effect as the resident registration under the Housing Lease Protection Act, and the defendant fails to meet the requirements for preferential repayment under the Housing Lease Protection Act

B. Defendant’s assertion

(1) The Defendant is a legitimate lessee who has paid a deposit for lease and received a delivery of the house. (2) The lease contract between the Defendant and Nonparty 1 is not a fraudulent act, and the Defendant shall be protected as the bona fide person who was unaware of the fraudulent act.

3. Determination

A. Whether the tenant is the most lessee

There is no evidence to prove that the Defendant entered into a false lease agreement. Rather, the fact that: (a) the Defendant: (b) purchased Nonparty 10 certificate; (c) obtained the lease agreement from Nonparty 2; (b) reported to Nonparty 3 as the domestic residence; and (c) obtained the lease agreement from Nonparty 2 to obtain the lease agreement from Nonparty 1 on December 24, 2004; (c) obtained the lease agreement from Nonparty 2 to obtain the lease agreement from Nonparty 3 on January 2, 2012; and (d) reported to Nonparty 2 as the temporary residence; and (c) the Defendant concluded the lease agreement with Nonparty 1 on September 27, 2013 to use the lease agreement from Nonparty 2, 205; and (e) obtained the lease agreement from Nonparty 1 to the domestic residence; and (e) obtained the lease agreement from Nonparty 2, 300,000,000 won to KRW 130,000,00 won; and (e) concluded the lease agreement with Nonparty 1 and Nonparty 2, 25.301.3.

B. Whether a fraudulent act was committed

1) In full view of the circumstances revealed by evidence Nos. 1, 4, 8, 9, and 1-7,8, etc., namely, the current status of provisional seizure and seizure of the instant housing, the time of commencement of auction, the time of filing a petition for bankruptcy by Nonparty 1, the owner, the sale price of the instant housing, and the size of the secured claim, etc., there is considerable room to deem that Nonparty 1 had already been in excess of the obligation, or had been in excess of the obligation due to the instant lease agreement, at the time of concluding the instant lease agreement with Nonparty 1.

2) However, in light of various circumstances acknowledged by the above evidence and the purport of the entire pleadings, i.e., (i) there was three collateral mortgages at the time of the conclusion of the instant lease agreement, but there was no circumstance showing the possibility of excess of the debtor’s obligation, such as provisional seizure and seizure; (ii) the case where a transaction was conducted under the circumstances where a prior priority security right was established, is frequently seen as a real estate transaction; (iii) the Defendant leased and actually resided in the instant house; (iv) the amount of the lease deposit stipulated in the instant lease agreement cannot be deemed to have been extremely low or high when considering the existence of the prior priority security right; and (v) there is no circumstance in which the Defendant contacted the non-party 1, the owner of the instant house for reasons other than the lease of the instant house, etc., it is reasonable to deem that the Defendant was unaware of his act at the time of the conclusion of the instant lease agreement.

(c) Whether requirements for preferential rights to payment are met (Effect of domestic residence report);

(i) Resident registration and domestic domicile report;

Article 3(1), Article 3-2(2), and Article 8(1) of the Housing Lease Protection Act provides that a lessee shall complete his/her resident registration in a leased house in order for the lessee to receive a certain amount of a deposit in preference to other secured creditors or to receive a deposit in preference to other secured creditors or other creditors (Article 3(1), 3-2(2), and 8(1). Meanwhile, Article 9 of the Overseas Koreans Act provides that “Where a resident registration certificate, a certified copy or abstract of a resident registration card, a foreign registration certificate, or a certificate of domestic domicile report is required in various procedures, transaction,

In this case, as seen earlier, since the defendant did not make the resident registration of the house in this case and only reported the domestic place of residence, it is problematic whether the defendant can treat the domestic place of residence as the resident registration and give preferential rights to payment under the Housing Lease Protection Act

2) Status of Korean nationals residing abroad

A) Current legislation

The purpose of the Overseas Koreans Act is to guarantee overseas Koreans the entry into and departure from the Republic of Korea (Article 1 of the Act), and to classify overseas Koreans into Korean nationals residing abroad (persons who have obtained permanent residence from or reside in a foreign country for the purpose of permanent residence from or who have acquired the nationality of the Republic of Korea) and foreign nationality Koreans (one of the persons who has acquired the nationality of the Republic of Korea or one of their parents or one of their grandparents who has acquired the nationality of the Republic of Korea) (Article 2 of the Act and Article 3 of the Enforcement Decree of the Act). Meanwhile, foreign nationality Koreans are subject to health insurance by providing domestic residence report to the head of the competent Regional Immigration Service, including real estate transactions and financial transactions, with the same rights as nationals of the Republic of Korea (Articles 5, 6, 11, 12, and 14 of the Overseas Koreans Act), while overseas Koreans have the obligation to report to the head of the competent Si/Gun/Gu having jurisdiction over their residence when they reside in the Republic of Korea for 30 days or more, and are not subject to the Health Insurance Act.

B) Existing legislation

Article 6 of the former Resident Registration Act (Amended by Act No. 12279, Jan. 21, 2014); Article 6 of the former Overseas Koreans Act (Amended by Act No. 12593, May 20, 2014); Article 6 of the former Overseas Koreans Act (Amended by Act No. 12593, May 20, 2014).

C)Transitional Measures

Even if a Korean national residing abroad who has reported his/her domestic place of residence in accordance with the previous provisions at the time of the enforcement of the current Overseas Koreans Act does not report his/her domestic place of residence in accordance with the Resident Registration Act, he/she has the effect of the previous domestic place of residence and the Korean place of residence report under the previous provisions until June 30, 2016 [Article 2 of the Addenda to the Overseas

3) Details of the statutes pertaining to resident registration

The purpose of the Resident Registration Act is to promote convenience in the lives of residents and to properly process administrative affairs by clearly ascertaining the residential situation of residents through the registration of residents (Article 1). The matters of resident registration, such as name, date of birth, address, etc., are recorded, managed, and preserved in individual resident registration cards, resident registration cards for each household, and index books for resident registration cards for each household (Articles 7, 10, 10-2 of the Resident Registration Act). Any third party, other than the principal or a household member, may apply for perusal of resident registration cards or issuance of copies or abstractss of resident registration cards (Article 29 of the Resident Registration Act). In other words, if necessary for the purpose of auction, a person other than the principal or a household member may apply for perusal of the resident registration cards or issuance of copies or abstractss of resident registration cards for the same purpose as those of the principal, a person who is related to the establishment, alteration, and extinguishment of rights to real estate, a person who is related to the establishment or lease contract and his/her guarantor, a person who is entitled to inspection of real estate and abstract.

The Resident Registration Act was enacted by Act No. 1067 on June 20, 1962. At the beginning, there was no restriction on the subject who can apply for the inspection of resident registration cards or the issuance of a certified copy or abstract of resident registration cards. In principle, the amendment of Act No. 4314 on January 14, 1991 limits the subject of application for inspection or delivery to the person who is the principal, household members, or the person delegated by him/her, in order to protect the privacy of individuals and prevent the abuse of the crime. After that, the amendment of the Enforcement Rule of the Resident Registration Act on June 28, 2005, various methods of inspection or delivery of resident registration cards, such as the establishment of a resident registration record card or a certified copy or abstract of resident registration cards, reflecting the need to verify the resident registration status of persons involved in real estate transactions and the protection of small-sum tenants, etc., and the revision of the Act was made to expand the subject of application for inspection or delivery.

4) Purport and history of the Housing Lease Protection Act

The purpose of the Housing Lease Protection Act is to ensure the stability of the national residential life by prescribing special cases on the lease of residential buildings (Article 1). The Housing Lease Protection Act was enacted and implemented by Act No. 3379 on March 5, 1981. Since that time, the Housing Lease Protection Act granted the opposing power to the third party as a requirement for the delivery of the house and the resident registration (Article 3), as the Housing Lease Protection Act was amended by Act No. 4188 on December 30, 1989, there was a system that grants the right to preferential payment of the deposit on the premise that the requirements such as the resident registration and the fixed date have been met (Articles 3-2 and 8), and even up to now, the Housing Lease Protection Act maintains its frame.

5) Effects of Korean nationals residing abroad;

A) ① The language and text of Article 9 of the Overseas Koreans Act only states that the same effect as the resident registration is granted to the overseas Korean resident registration, and there is no content that recognizes the same legal effect as the resident registration. ② The resident registration can contribute to transaction safety by functioning as a publication method that enables a third party to clearly recognize the existence of the right of lease. ③ The domestic domicile report of overseas Koreans is not in place a publication method such as the resident registration; ④ there is room to regard that the legislators have changed the system to make the overseas Korean resident registration, instead of the resident registration, through the revision of the Resident Registration Act and the Overseas Koreans Act in order to enhance the rights and interests of the overseas Korean resident under the premise that the effectiveness of the resident registration and the domestic domicile are different. ⑤ In light of the fact that the overseas Korean resident who leased a house even without protection under the Housing Lease Protection Act, even if it is not protected under the Housing Lease Protection Act, it is difficult to deem that the domestic domicile report of overseas Korean resident on January 22, 2015 has the same effect as the resident registration and the right of preferential payment under the Housing Lease Protection Act.

B) However, unlike foreign nationality Koreans, there is no reasonable ground to exclude overseas Koreans from the Housing Lease Protection Act in light of the purpose and language of the Housing Lease Protection Act. ② The Overseas Koreans Act legally separates overseas Koreans and foreign nationality Koreans before January 22, 2015, and treats them differently, and grants them equal rights to the nationals of the Republic of Korea with respect to the acquisition, possession, use, and disposal of real estate. ③ Establishment of the resident registration system for overseas Koreans through the revision of the Housing Lease Protection Act on January 22, 2015 is more strengthened than granting the legal status and rights conferred before and to create new rights. It is reasonable to interpret that the Housing Lease Protection Act has the same effect as that of the former resident registration card to prevent confusion by the domestic residence report system (the purpose of the Housing Lease Protection Act is not to provide public notification for the original legal relationship, and the function of the resident registration card is not to provide for the right to preferential payment of the resident registration card at the time of entry into force of the Act after the date of entry into force of the Act.

6) In the instant case:

As seen earlier, the Defendant reported the domestic domicile of the instant house as a Korean national residing abroad prior to the enforcement of the current Resident Registration Act and the Overseas Koreans Act. As such, the Defendant satisfies the resident registration requirements under Articles 3-2 and 8 of the Housing Lease Protection Act.

D. Sub-committee

Therefore, the defendant is entitled to receive the lease deposit under Articles 3-2 and 8 of the Housing Lease Protection Act, which is a tenant with the delivery, resident registration and fixed date prior to the commencement of auction on the instant house.

4. Conclusion

On a different premise, the Plaintiff’s claim seeking correction of the instant distribution schedule cannot be accepted, and it is so decided as per Disposition.

[Attachment]

Judges Shin Jae-ok