Whether the Plaintiff is a small lessee subject to the highest repayment

This part of the lawsuit against the head of a tax office, who is an administrative agency, is unlawful as against the person without the capacity of the party. Since the conversion deposit exceeds the standard amount, it cannot be deemed as a smallest lessee subject to the top priority repayment as prescribed by the Commercial Building Lease Protection

Article 14 of the Commercial Building Lease Protection Act

Incheon District Court-2017-Ga group-43564 ( October 27, 2018)

ZO

OO Head of the tax office and one other

2018.23.9

8.01.31

1. All of the lawsuits against Defendant ○○○○ Head of the tax office, and △△○ Head of the tax office among the instant lawsuits are dismissed.

2. The Plaintiff’s respective claims against the Defendant-do HH, △△△△△△, and J bank

The dismissal is dismissed.

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

In the distribution schedule prepared by the above court with respect to the auction of real estate 2000 real estate by the Incheon District Court, 123,756 won, which was distributed to Defendant HH, shall be 116,473 won; 204,901 won, which was distributed to Defendant △△△△△△△△△△△△△△, shall be 192,843 won; 54,560 won, which was distributed to Defendant △△△△△△△△△△△△△, shall be 51,349 won; 7,770,123 won, which was distributed to Defendant △△△△△△△△△△△△△,312,869 won, and 161,76,651 won, which was distributed to Defendant △△△△△△△△△△, Inc., shall be corrected to 152,256,457 won; and shall be corrected to 10,000 won.

1. Basic facts

A. On November 20, 2013, the Plaintiff entered into a lease agreement with Nonparty Hong-dong on setting lease deposit amount of KRW 10,000,000, the lease deposit amount of KRW 24 months, the lease period of KRW 1,100,000 between the Plaintiff and Nonparty Hong-dong.

나. 이 사건 점포에 대하여 인천지방법원 2016타경00000호로 임의경매절차가 진행되었고 원고는 임차인으로서 배당을 요구하였다. 집행법원은 배당기일인 2017. 12. 21. 이 사건 점포의 매각대금 중 실제 배당할 금액 172,214,571원을 ① 1순위로 교부권자 (당해세)인 인천광역시 ■■구에 2,284,580원, ② 2순위로 교부권자(조세)인 경기도 HHH에 1,261원, 교부권자(공과금)인 △△△△△△△ 대구남부지사에 204,901원, 교부권자(조세)인 ○○○세무서에 54,560원, 교부권자(조세)인 □□□세무서에 7,723,951원 및 46,172원, 신청채권자(근저당권자)인 주식회사 JJ은행에 161,776,651원, 압류권자(조세)인 경기도 HHH에 122,495원을 각 배당하는 내용의 배당표(이하 '이 사건 배당표'라 한다)를 작성하였다.

C. The Plaintiff appeared on the aforementioned date of distribution, and raised an objection against part of the amount distributed to the Defendants. On December 28, 2017, the Plaintiff filed a lawsuit of demurrer against the distribution of this case.

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

2. The plaintiff's assertion

The Plaintiff, as the lessee of the instant store, is a small-sum lessee for the top priority repayment protected under the Commercial Building Lease Protection Act, and thus, a preferential dividend should be made for KRW 10,000,000 for the Plaintiff’s lease deposit. Nevertheless, as the instant distribution schedule did not state a dividend to the Plaintiff, the Plaintiff is seeking revision of the distribution schedule identical with the amount claimed

3. Determination

A. Although the administrative agency which determines the legitimacy of the lawsuit against the Defendant ○○○○ Head of the tax office and the △△ Head of the tax office may become a party to the administrative litigation (Article 13(1) of the Administrative Litigation Act), it cannot be a party to the ordinary civil litigation due to the lack of legal capacity under the Civil Act. Therefore, this part of the lawsuit against the Defendant against the ○○ Head of the tax office and △△ Head of the tax office is unlawful.

B. Judgment on the merits

According to Article 14 of the Commercial Building Lease Protection Act, Article 6 subparagraph 2 of the former Enforcement Decree of the Commercial Building Lease Protection Act (amended by Presidential Decree No. 25036, Dec. 30, 2013), a lessee who is to receive the top priority payment shall be a lessee who is not more than 45,00,000 won (in cases of overconcentration control region under the Seoul Metropolitan Area Readjustment Planning Act), in which the sum of the amount converted under Article 2 (2) of the Act does not exceed 45,00 won if the lessee is a deposit and a vehicle (in cases of overconcentration control region under the Seoul Metropolitan Area Readjustment Planning Act), however, in the case of the Plaintiff, the conversion deposit exceeds the above amount with 120,000,000 won + monthly rent of 10,000,000 x 1,1000,000). Therefore, the Plaintiff’s claim cannot be viewed as a small amount subject to the top priority payment under the Commercial Building Lease Lease Protection Act.

4. Conclusion

Therefore, the Plaintiff’s lawsuit against Defendant HH, △△△△△△△, and JB Bank, among the instant lawsuit, is unlawful and dismissed. Each claim against Defendant HH, △△△△△△△, and Nonindicted Bank is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.