2015 grouped 1188444 Demurrer

A person shall be appointed.

Seoul Special Metropolitan City, Nowon-gu

Law Firm △△, Counsel for defendant-appellant

[Defendant-Appellant]

1. B

Seoul Special Metropolitan City, Nowon-gu

2. Nowon-gu in Seoul Special Metropolitan City

Representative Kim Sung-hwan

Law Firm △ general, Counsel for defendant

[Defendant-Appellee] △△, △△, and △△

△△△△△, Counsel for defendant-appellant

July 24, 2015

September 11, 2015

1. Of the distribution schedule prepared by the above court on May 14, 2015, the amount of 80,00,000,000 won for Defendant B, the amount of 8,290,367 won for Defendant B, the amount of 8,896 won for Defendant Nowon-gu in Seoul Special Metropolitan City, and the amount of 1,54,867 won for the Plaintiff’s dividends of 73,273,396 won for the amount of 8,896 won for Defendant Nowon-gu in Seoul Special Metropolitan City, and the amount of 1,554,867 won for the Plaintiff’s dividends of 73,273,396 won, respectively.

2. The costs of lawsuit are assessed against the Defendants.

The primary purport of the claim is as shown in the text of the claim.

Preliminary Claim: Defendant Nowon-gu in Seoul Special Metropolitan City (hereinafter referred to as "Defendant, Nowon-gu") is the Plaintiff.

73, 445, 133 won and interest thereon from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

20% of the 20% interest shall be paid.

1. Basic facts

A. On May 30, 2014, the Seoul Northern District Court Decision 201Da13211, Seoul Northern District Court Decision 2013Da13211 decided May 30, 2014, regarding C and D joint ownership x 302 on the third floor (No. 5 dividend item number; hereinafter referred to as “the second floor building of this case”).

B. During the above voluntary auction procedure, the court of execution distributed the amount of KRW 164,687,628 to be actually distributed after deducting the cost of execution from the proceeds of sale and interest of the sub-building of this case, and the amount of KRW 309,390,390, and KRW 871, and KRW 867 to the Seoul Credit Guarantee Foundation, the first priority mortgagee, the lessee of the Seoul Credit Guarantee Foundation, in the second priority order of KRW 80,00,000, KRW 813,50, and KRW 4 to the Han Bank, the subordinate mortgagee of this case, in the second priority order of KRW 80,613,50, and KRW 896, and KRW 113,095, and KRW 1,554, and KRW 867 to the Plaintiff, the lessee, the lessee of this case, respectively.

C. On May 14, 2015, the Plaintiff appeared on the date of distribution and raised an objection to the full amount of dividend for the claims of the Korea Credit Guarantee Fund, Han Bank, and Defendant Nowon-gu, as well as KRW 71,709,633 out of the amount of dividend for Defendant B.

[Grounds for recognition] The descriptions of Gap evidence Nos. 1, 2, 4, and 5, and the purport of the whole pleadings

2. Summary of the parties’ assertion

A. On May 4, 2011, the Plaintiff was a lessee who has made a move-in report to Seoul Nowon-gu Seoul, Nowon-gu 217 - x 302 ", and received the fixed date. The number of houses was omitted due to the mistake of the public official in charge of the Defendant Nowon-gu, Seoul Special Metropolitan City, Nowon-gu, and the Plaintiff was erroneously recorded in the resident registration card only "Y 217 - X", and the Plaintiff was immediately corrected and corrected at the auction procedure of this case. Thus, the Plaintiff should be deemed to have made the resident registration on the du-story building of this case on the first date of the move-in report. (2) The Defendant B reported the move-in report on the 4th floor of this case to around 10 and 4, 2011, and it was subordinate to the Plaintiff as the lessee who received the fixed date. (3) Therefore, it is unfair in the order of priority between the Plaintiff and the Korea Credit Guarantee Fund, one corporation, and Defendant B and the Korea Credit Guarantee Fund.

B. Defendant B’s initial resident registration is not effective because it does not state the number of houses of the instant sub-story building, which is a sectional ownership, and it can be recognized that the resident registration for the instant sub-story building was made only on June 25, 2014, which was registered in addition to the detailed address, and the dividend under the instant distribution schedule is justifiable.

C. Even if the public official in charge of the defendant, Nowon-gu accepted the wrong acceptance, there is no proximate causal relationship between the plaintiff's exclusion from the distribution procedure and the negligence of the public official in charge, since the plaintiff's opposing power

3. Determination

(a) Facts of recognition;

1) Although the instant double-story building is indicated in the registry number No. 302 of the building number 3, and the building content as "the 3, 4th floor of reinforced concrete building (3, 4th floor)", the actual 3th floor and the 4th floor are completely cut off, and there is no stairs leading internally, and the entrance is completely independent as in separate sections.

On February 22, 2011, the Plaintiff leased three floors from C and D to 75 million won the lease deposit. On May 4, 2011, the Plaintiff received the fixed date after receiving the move-in report on May 5, 201. The Plaintiff entered the said three floors into the move-in report on May 4, 201 as Seoul Nowon-gu, Seoul, Nowon-gu, 217 x 302 x 302 x 217 x 302 x the Plaintiff’s public official in charge of the above move-in report on the move-in report. However, the Defendant Nowon-gu, a public official in charge of the Defendant Nowon-gu, omitted the number of houses, and found it from the Plaintiff’s auction procedure on the move-in report on May 4, 201.

3) Defendant B leased the fourth floor of the instant sub-story building from C and D with the deposit for lease of KRW 80,00,000. On October 4, 201, Defendant B completed the resident registration with Gongung-dong 217 x 3rd floor, Nowon-gu, Seoul Special Metropolitan City. At the time of the said lease, Defendant B was registered with the second floor at the time of the said lease, and was aware of the fact that other persons than the owner were living on the third floor. Meanwhile, Defendant B filed an application for correction on the ground of mistake on June 17, 2014 during the instant auction procedure, and revised the address on the resident registration card as “302 sub-story No. 302,00,000,000 won, which was the date of the instant provisional attachment, and completed the registration on December 14, 2012, which was the date of the instant provisional attachment of KRW 130,000,000,000.

[Grounds for recognition] Evidence A 1 to 7, Eul 1-1 to 3, the purport of the whole pleadings

B. Determination

1) The Housing Lease Protection Act-related provisions

Article 3(1) of the Housing Lease Protection Act provides that even in cases where no registration is made, when a lessee completes the delivery of a house and resident registration, a third party shall be deemed to have been registered as a resident at the time of the moving-in report. In such cases, Article 3(2) of the Housing Lease Protection Act provides that the lessee who has the opposing power and the fixed date on the lease agreement document under Article 3(1) shall have the right to receive the deposit in preference to junior creditors or other creditors at the auction procedure.

B) Legal principles

Article 3(1) of the Housing Lease Protection Act provides as the requirement for opposing power along with the delivery of a house. Since the validity of a lease is determined on the basis of a public announcement method whereby a third party can clearly recognize the existence of a right of lease for the safety of transaction. Thus, the validity of a lease should be determined on the basis of whether a lessee can be recognized as a person who has an address or residence in the relevant lease building as a resident registration under the general social norms. Meanwhile, a resident registration does not simply identify the residential relationship and clarify the population situation, but also has various legal effects on the public law relations depending on the resident registration. If a resident registration report reaches an administrative agency, it does not take effect as a report if an administrative agency accepted the report (see Supreme Court Decision 2006Da17850, Jan. 30, 209). In addition, if a lessee makes a move-in report early, the Plaintiff’s first entry of the number in the resident registration card into the new domicile (see Supreme Court Decision 2006Da17850, Jan. 30, 2009).

In light of the aforementioned relevant statutes and the relevant legal principles, it is reasonable to deem that the Plaintiff’s acquisition of opposing power by the Plaintiff’s tenant on May 4, 2011, after the date following the date of delivery and resident registration, appears to have been delivered on May 5, 201, since the Plaintiff’s acquisition of opposing power by entering it into “Seoul Nowon-gu, Seoul, Nowon-gu, 217-6302” and the public official in charge of the Defendant Nowon-gu accepted it, and the Housing Lease Protection Act is deemed to have been registered as a resident at the time of the moving-in report by the Plaintiff. Therefore, it is reasonable to deem that the Plaintiff’s acquisition of opposing power by the time of the moving-in report by the Plaintiff on the instant sub-story building is a legitimate resident registration by the Plaintiff on May 4, 2011.

4) Priority of dividends

The Plaintiff, as a lessee with opposing power and fixed date, has the right to receive a security deposit in preference to junior creditors and other creditors similar to the security rights holder, and the date on which the Plaintiff’s preferential repayment right arises, as seen above, shall be May 6, 201 (the date on which Defendant B’s preferential repayment right arises).

5. The plaintiff is deemed to have the right to receive the deposit in preference to the defendants in the auction procedure of this case, since it appears to have run earlier than the statutory deadline for the tax claim of the defendant, Nowon-gu.

Nevertheless, deeming that the date of the preferential payment right of Defendant B is earlier than the Plaintiff, it is unreasonable to preferentially distribute the Plaintiff to Defendant B, and distribute the Plaintiff to the Plaintiff as the Defendant Nowon-gu and the same rank holder.

C. Sub-committee

Therefore, prior to the date of occurrence of preferential payment right than the Defendants, the dividends amounting to KRW 8,896 in Defendant Nowon-gu shall be distributed to the Plaintiff. As such, the dividends amounting to KRW 80,00,00 in Defendant B’s dividends amounting to KRW 8,290,367, the Plaintiff’s dividends amounting to KRW 1,554,867 in KRW 73,273,396 in each of the instant dividends amounting to KRW 73,273,396.

On the other hand, as long as the plaintiff's primary claim is accepted, the conjunctive claim against the defendant Nowon-gu is not judged separately.

4. Conclusion

Therefore, the plaintiff's primary claim against the defendants is justified and it is so decided as per Disposition.

Judges Kim Gin-soo