In a case where Company A, after the completion of the registration of creation of a mortgage on the apartment owned by Company B, Company B entered into an apartment lease agreement with Company B and obtained the fixed date; thereafter, the auction was conducted on the apartment; and the distribution schedule was prepared to distribute the proceeds of sale to Small-Scale C in the first priority order, Company A raised an objection, the case holding that Company C does not constitute a small-sum lessee protected in the Housing Lease Protection Act because it was concluded a lease agreement in collusion with the lessor to obtain unjust profits, although it was sufficiently anticipated that the commencement of auction will be

In a case where Company A, after the registration of creation of a neighboring mortgage on the apartment owned by Company B for the purpose of securing the loan claims to Company B, Company B entered into an apartment lease agreement with Company B and obtained the fixed date, and thereafter the auction was conducted for the apartment, and the distribution schedule was prepared to distribute the proceeds of sale in the first order to Small-Medium C, the case holding that the lessee does not constitute the small-sum lessee under the Housing Lease Protection Act because, despite being aware of the fact that the lessee was highly likely to have an early auction due to the preferential security right on the leased real estate, only paying the small-sum lease deposit by abusing the priority repayment system of the small-sum lease deposit, and the lessor also leases the real estate for the purpose of deducting the lease deposit from the amount that the prior security right holder should receive if the real estate was sold after the acquisition of the lease deposit, and in light of all the overall circumstances, Byung would sufficiently expect the commencement of auction on the apartment house, but concluded a lease agreement in collusion with the lessor to gain unjust profits, and thus, it does not constitute a small-sum lessee

Article 8 of the Housing Lease Protection Act

Mo Savings Bank (Law Firm Erasing, Attorneys Kim Jong-sik, Counsel for defendant-appellant)

Defendant ( Nonparty 1, Counsel for the defendant-appellant)

December 20, 2016

1. Of the dividend table prepared by the above court on March 31, 2015, the amount of KRW 25,000,000 against the defendant among the dividend table prepared by the Seoul Western District Court 2014TAD 10829 shall be corrected to KRW 88,921,100, and the amount of dividends against the plaintiff shall be corrected to KRW 63,921,100, respectively.

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

The main text of paragraph (1) is as follows.

Preliminaryly, the lease agreement concluded on April 18, 2014 with respect to apartment units No. 102, 1808, Yongsan-gu Seoul Metropolitan Government ( Address omitted) is revoked between the Defendant and Nonparty 2. Of the distribution schedule prepared on March 31, 2015, the amount of dividends of KRW 25,000,000 against the Defendant shall be KRW 0, and the amount of dividends of KRW 63,921,000 against the Plaintiff shall be corrected to KRW 88,921,100, respectively.

1. Basic facts

A. On April 12, 2012, the Plaintiff entered into a credit transaction agreement with Nonparty 2 as KRW 269,00,000, and lent KRW 205,078,90 to Nonparty 2. The Plaintiff completed the registration of the establishment of a mortgage with the registration office of Yongsan-gu Seoul Western District Court No. 11450, Apr. 12, 2012, using the maximum debt amount as KRW 349,70,00 for an apartment building ( Address omitted) No. 1808, Yongsan-gu, Seoul (hereinafter “instant apartment”) owned by Nonparty 2 as a collateral for the said loan claim.

B. On April 18, 2014, the Defendant concluded a contract to lease the instant apartment from Nonparty 2 with a deposit of KRW 35,00,000,00 and the lease period of KRW 5,00 from May 9, 2014 to May 8, 2016 (hereinafter “instant lease contract”) and obtained the fixed date on May 8, 2014.

C. On July 2, 2014, Hong Kong, a creditor of the instant apartment, filed an application for voluntary auction on the instant apartment on July 2, 2014, with the Seoul Western District Court 2014ta, around 10829, and the Defendant filed an application for a report on right and a demand for distribution in the said auction procedure on September 17, 2014. The Seoul Western District Court, on March 31, 2015, prepared a distribution schedule that distributes KRW 25,00,000 among the sales proceeds of the instant apartment (hereinafter “instant distribution schedule”), and the Plaintiff raised an objection thereto.

[Reasons for Recognition] Uncontentious Facts, Gap evidence 2-1, 2-3, Gap evidence 4, Gap evidence 9-1, 2, Gap evidence 10, Gap evidence 11, and Gap evidence 14, the purport of the whole pleadings

2. The plaintiff's assertion

In the first place, the lease agreement between Nonparty 2 and the Defendant is null and void because it constitutes a false conspiracy. Therefore, the amount of KRW 25,000,000 against the Defendant in the instant distribution schedule should be adjusted to KRW 0,00, and KRW 63,921,00 against the Plaintiff should be adjusted to KRW 88,921,10,00.

Preliminaryly, Nonparty 2 committed a fraudulent act by setting up and granting a right of lease to the Defendant to receive a preferential repayment of small amount deposit against the instant apartment in excess of debt, and the Defendant’s bad faith is presumed to be presumed to have been the beneficiary. Accordingly, the instant lease contract is revoked. As a restoration to original state, the amount of KRW 25,00,000 against the Defendant in the instant distribution schedule should be revised to KRW 0,00,000, and the amount of KRW 63,921,000 against the Plaintiff should be adjusted to KRW 88,921,10

3. Determination

According to the statement in the evidence Nos. 3, 3, 4, 6, 7, 8-1 through 3, and 10, the defendant actually paid KRW 35,00,000 to Nonparty 2 on April 18, 2014 by remitting the remainder of KRW 32,00,000,000 to Nonparty 2 on May 8, 2014. In light of the above facts, it is difficult to conclude that the defendant concluded the instant lease contract with a falsity or did not actually reside in the instant apartment from May 2014.

However, comprehensively taking account of the overall purport of arguments as to Gap evidence 2-1, Gap evidence 3, Gap evidence 5, Eul evidence 8, Eul evidence 9-3, and Eul evidence 2-1, the court below concluded the lease contract of this case with 20,000 won, which is the first priority of 3,00,000 won for the apartment of this case, the sum of the maximum debt amount of which exceeds 6,15,00,000 won, and 474,00,000 won for the first priority of 2,00,000 won for the first priority of 3,00,000 won for the lease contract of this case, which is the second priority of 2,00,000 won for the first priority of 3,00,000 won for the lease contract of this case, which is the second priority of 2,00,000 won for the first priority of 2,005,00 won for the lease contract of this case.

In Article 8 of the Housing Lease Protection Act, the purpose of recognizing the right of repayment of the preferred small-value lease deposit is to ensure the stability of the lessee’s residential life even if the leased real estate is sold by auction due to the circumstances that the lessee could not have anticipated. Therefore, even though the lessee knows that the leased real estate has a preferential security right in preference to the leased real estate, it is highly likely to be sold at an early stage, it shall be deemed that the lessee pays only the small-sum lease deposit by abusing the preferential repayment system, and the lessor shall not be subject to the protection of the aforementioned Housing Lease Protection Act even in cases where the leased real estate is leased with the purpose of deducting the above lease deposit from the amount that the person with a preferential security right should have acquired the above lease deposit and auction the real estate.

In light of the above facts, although the defendant is sufficiently expected to commence the auction of the apartment of this case, he concluded the lease contract of this case in collusion with the non-party 2 of this case in order to gain unjust profits, so it does not constitute a small-sum lessee protected under the Housing Lease Protection Act.

Ultimately, the amount of 25,00,000 won paid by the Defendant on the premise that the Defendant constitutes a lessee of small claims under the Housing Lease Protection Act, and the amount of 63,921,100 won paid to the Plaintiff, and the amount of 88,921,10 won paid to the Plaintiff, shall be corrected respectively.

4. Conclusion

The plaintiff's primary claim is justified and it is so decided as per Disposition.

Judges after Completion

1) The amended provisions of Articles 10 and 11 shall also apply to a lease agreement in existence at the time this Decree enters into force, but the former provisions shall also apply to a person who has acquired a security right on a leased house before this Decree enters into force.