(영문) 부산지방법원 2008.3.27.선고 2007나13074 판결

In the Busan District Court's distribution procedure of a voluntary auction case No. 3188, Dec. 22, 2006, the plaintiff's dividend amount of KRW 14,00,000 among the dividend table prepared by the above court on December 22, 2006, and the defendant's dividend amount of KRW 19,88,160 shall be corrected to KRW 5,88,160.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

Reasons

1. Basic facts

A. On June 24, 2004, the Maritime Agricultural Cooperative Co., Ltd. (hereinafter referred to as the 'Maritime Agricultural Cooperative Co., Ltd.') was established with respect to the right to loans against a Co., Ltd. (hereinafter referred to as 'A'), which is the ownership of a A, as collateral for the right to collateral loans against a Co., Ltd., Ltd. (hereinafter referred to as 'A'), the right to collateral security (hereinafter referred to as 91 million maximum debt amount) was established with respect to the location of the Busan Dong-gu, Busan. The Defendant was established with respect to the instant real property on May 2,

B. A on August 16, 2005, transferred the instant real estate to C on condition that the Defendant’s right to collateral security was cancelled within September 10, 2005, and C transferred the instant real estate to D Co., Ltd. operated by D on the same day.

C. On January 18, 2006, 2006, the Korea Shipping Co., Ltd. filed an application for voluntary auction with the Busan District Court Decision 2006 Ta3188 on the real estate of this case on the ground that the above loans were not repaid, and the above court rendered a decision to commence voluntary auction on January 20, 206.

D. The Plaintiff applied for the allocation of dividends to a small lessee during the said voluntary auction procedure.

E. On the date of distribution on December 22, 2006, the above court prepared a distribution schedule with the content of distributing the amount of KRW 111,052,640 out of KRW 164,480 out of the amount to be distributed to the Defendant, who is a mortgagee, in the order of 111,052,640, and 91,000 won to the Busan East-gu Office, which is a holder of the right to deliver, in the order of 2nd priority of 9,100,000 won, to the Maritime Co., Ltd.

F. The Plaintiff appeared on the date of distribution, and raised an objection against the Defendant’s dividend amount of KRW 14 million, and filed a lawsuit of demurrer against the distribution of this case.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Gap evidence 6-1, 2, Gap evidence 7, and 15, the purport of the whole pleadings

2. The plaintiff's assertion

On January 9, 2006, the Plaintiff entered into a lease agreement with A on the instant real estate with the lease deposit of KRW 14 million, monthly rent of KRW 100,000,000, and the lease period of KRW 2 years. On January 10, 2006, the Plaintiff entered into a move-in report on January 16, 2006 and entered into the move-in report on January 16, 2006, and obtained the fixed date. On January 18, 2006, the Plaintiff paid the full lease deposit of KRW 14 million to DD who acquired the instant real estate. As such, the Plaintiff is a small lessee who has resided in the instant real estate and received dividends in preference to the Defendant.

3. Determination

On the other hand, the legislative purpose of the Housing Lease Protection Act is to ensure the stability of the residential life of citizens by prescribing special cases on the Civil Act concerning residential buildings. Article 8(1) of the Housing Lease Protection Act provides that the lessee may be paid a certain amount of the deposit in preference to other secured creditors. In the case of small lessee, even if the deposit is a small amount of the deposit, it is a large amount of property, and thus, it is reasonable to guarantee the recovery of the deposit even if it is detrimental to the other secured creditors. In the case of small lessee, it is an exception to the general provisions of the Civil Act. In light of such legislative purpose and the purport of the system, it is reasonable to ensure that the obligee is obliged to make a lease contract with the debtor on the house owned by the debtor and reside at the same time, but it is not intended to use the real purpose of the lease contract, and in fact, it is not possible to protect such lessee as a small lessee under the Housing Lease Protection Act (see Supreme Court Decision 201Da14733, May 8, 2001).

In light of the above legal principles, considering the following facts: (i) the Plaintiff’s assertion that he had paid the lease deposit to D on or before January 18, 2006; (ii) the Plaintiff had already paid the lease deposit to D on or before December 14, 2005; and (iii) the Plaintiff had not paid the lease deposit to D on or before December 23, 2005; and (iv) the Plaintiff could have transferred the lease deposit to D on or before the date of application for the lease contract to 00,000 won to 10,000 won to 10,000 won to 10,000 won to 30,000 won to 10,000 won to 10,000 won to 0,000 won to 10,000 won to 0,000 won to 0,000 won to 15,000 won to 5,005,000 won to 5,06.

According to the above facts, although D, a representative director, can be deemed as the actual owner of the instant real estate, and even if the Plaintiff resided in the instant real estate after the instant lease agreement, it is reasonable to view that the main purpose of the instant lease agreement is not to use and benefit from the instant real estate, but to have been the main purpose of collecting the claim in preference to the prior mortgagee by being protected as a small lessee, and therefore, the Plaintiff cannot be protected as a small lessee under the Housing Lease Protection Act.

Therefore, the plaintiff's assertion is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed due to the lack of reason, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed. It is so decided as per Disposition.