Plaintiff Agricultural Cooperatives (Attorney Cho Young-gu et al., Counsel for the plaintiff-appellant)

Defendant 1 and 7 others

Defendant 3 (Attorney Kim Jae-in, Counsel for defendant-appellant)

January 16, 2009

Gwangju District Court Decision 2007Gadan92273 Decided June 4, 2008

1. The part against Defendant 4 and 9 in the judgment of the first instance shall be revoked;

2. Of the distribution schedule prepared by the above court on October 2, 2007 with respect to the case of auction of real estate in Gwangju District Court 2006Taeng 51759, the amount of dividends to Defendant 4 is 8,163,396 won, 5,81,911 won, 9,796,075 won to Defendant 9, 796,075 won to 7,058,293 won, and the amount of dividends to the Plaintiff 265,710,176 won to the Plaintiff, 270,729,443 won.

3. All appeals filed by the Plaintiff against the remaining Defendants and the Defendant (Appointed Party) are dismissed.

4. The total cost of the lawsuit between the Plaintiff and Defendant 4 and Defendant 9 shall be borne by the said Defendants, and the remainder of the Plaintiff and the costs of appeal against the Defendant 3 shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The amount of dividends against the plaintiff among the distribution schedule prepared by the said court on October 2, 2007 with respect to the case of auction of real estate at the Gwangju District Court 2006Taeng 51759 shall be modified as stated in the column of "revision of the amount of dividends" in the attached list of dividends, as stated in the distribution table for the defendants, the defendant (hereinafter referred to as "the appointed party") and the appointed parties. (The part against the above defendants was excluded from the scope of the appellate trial as to the above defendants 10, 11, 12, 13, 14, and 15, since the plaintiff withdrawn an appeal against the co-defendant 10, 11, 12, 14, and 15 after filing an appeal by the plaintiff.)

1. Basic facts

A. On January 28, 199, the Plaintiff entered into a mortgage agreement of KRW 392,00,000 with the Nonparty, who is the owner of each real estate listed in the separate sheet of real estate No. 1 (hereinafter “each of the instant real estate”), and on January 30, 199, completed the establishment registration of a neighboring mortgage on the 30th of the same month, and thereafter lent KRW 280,000 to the Nonparty around that time.

B. At the time of the Plaintiff’s establishment of the foregoing right to collateral security, the status of the instant building was the 1st, the 2nd, the 3rd, and the 4th, and the 1st, the church, the 2nd, the 3rd, and the 4th, used as the housing.

C. However, the Nonparty, after completing the registration of the establishment of the above neighboring building, remodeled the entire building of this case into studio housing, and leased the building to the Defendants, the designated parties, and the co-defendants of the first instance trial as shown in the separate dividends list. The indication of the registry on the building of this case was modified as stated in paragraph (2) of the attached

D. In order to recover the principal and interest of each of the instant real estate to the Nonparty, the Plaintiff filed an application for the auction of real estate rent with the Gwangju District Court 2006taea, 51759, and the said court recognized the Defendants and the designated parties as a small lessee under the Housing Lease Protection Act, as stated in the column of the attached list of dividends in the auction procedure, and distributed the relevant amount in the top priority order. The Plaintiff prepared a distribution schedule that distributes the amount of KRW 265,710,176 to the Plaintiff, a mortgagee, who is a

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 2-1 and 2, the purport of the whole pleadings

2. The plaintiff's assertion

The plaintiff asserts that, if the purpose of the right to preferential payment is changed from the time of auction to the time of change of the unauthorized Use after the establishment of the right to collateral security, it would incur unexpected damages to the mortgagee. Thus, as in this case, the "where the part of the building which was not a house at the time of the establishment of collateral security has changed to the purpose of use to the house after the establishment of the right to collateral security," the lessee of the relevant house after the change of the purpose is considered not to be a small lessee under the Housing Lease Protection Act, and thus, it cannot be asserted that the auction court prepared a distribution schedule that recognizes the defendants and the designated parties as prior to the lease as the right holder than the plaintiff. (The plaintiff erred by the 501th tenant's loss was indicated as the 4th tenant as the 5th tenant, and the tenant of the above 4th tenant of the housing unit was the defendant of the

3. Determination

A. As to the defendant 4 and 9

As to the plaintiff's above assertion, the above defendants are deemed to have led to confession under Article 150 of the Civil Procedure Act.

B. Determination as to the remaining Defendants

Among the buildings in this case, there is no dispute between the parties that the Defendants and the designated parties have been equipped with the substance of housing as well as the room, and there is no room for dispute between the parties that they had the right to preferential reimbursement after the establishment of the right to collateral security, so it would result in an unpredictable damage to the mortgagee of a small amount where the right to preferential reimbursement has been changed to the studio without permission. However, the issue of whether the housing is subject to protection under the Housing Lease Protection Act should be determined according to the substance, not in the same form as the purpose of the public register. Since the Housing Lease Protection Act has the legislative purpose of guaranteeing the stability of the residential life of ordinary people, the Housing Lease Protection Act shall not be interpreted unfavorably to the lessee without a clear ground. Article 2 of the Housing Lease Protection Act only provides that "this Act shall apply to the lease of residential building at the time of lease," and does not separately provide for the exclusion of the application of the "building changed to the housing after the establishment of the right to collateral security." Thus, even if the remaining Defendants and the designated parties did not accept some of the Plaintiff's claim.

4. Conclusion

Therefore, the amount of dividends against Defendant 4 among the distribution schedule prepared by the above court on October 2, 2007, the Gwangju District Court 2006Taeng 51759 was 8,163,396 won, 5,881,911 won, 96,075 won, 7,078,293 won, and 265,710,176 won for the amount of dividends against Defendant 9, and 265,710,729,43 won, among the distribution schedule prepared by the above court on October 2, 2007. Thus, the plaintiff's claim of this case is justified within the above scope of recognition, and it is unfair for the court of first instance to dismiss the remaining claims for this case without any justifiable reason. Accordingly, the part against the plaintiff 4,9 of the judgment of the court of first instance against the defendant among the judgment of the court of first instance is revoked, and the remaining part of the plaintiff's appeal against the defendants is dismissed.

[Attachment List of Selectioners, List of Distributions, and List of Real Estate]

Judges Kang Jin (Presiding Judge) et al.