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1. Of the distribution schedule prepared on March 11, 2014 by the same court with respect to the auction case of real estate B in Incheon District Court.
Reasons
1. Basic facts
A. On March 25, 2010, the Plaintiff leased KRW 119 million to C, and completed the registration of establishment of a neighboring mortgage of KRW 167 million to the Seo-gu Incheon Metropolitan Government D 206 (hereinafter “instant house”) owned by C as security.
B. On March 16, 201, the Defendant entered into a lease contract with C as of April 26, 2011 to April 25, 2011 with respect to the instant house (hereinafter “instant lease”). Accordingly, the Defendant resided in the instant house and sublet the instant house to E on April 8, 2013, with the rent of KRW 40,000,000 per month.
C. Meanwhile, on April 5, 2013, according to the Plaintiff’s request for auction for the enforcement of the right to collateral security, an auction procedure was initiated regarding the instant housing on April 5, 2013 (Seoul District Court B and June 12, 2013), and on March 11, 2014, on the grounds that it is a small lessee on the date of distribution, the Plaintiff raised an objection to the entire dividend amount against the Defendant.
[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1 and 2, the purport of the whole pleadings
2. The parties' assertion
A. The plaintiff: The defendant should be excluded from the dividend, since he could not maintain the opposing power by subleting the house of this case to E and losing possession thereof.
B. Defendant: The Defendant should be deemed to have maintained its opposing power since he occupied the instant house via E indirectly.
3. The opposing power as stipulated in Article 3 (1) of the Housing Lease Protection Act is recognized not only in a case where the lessee resides in the relevant house and directly occupies it, but also in a case where he occupies it indirectly by mediating another person's possession, but also in such case the lessee who is an indirect occupant who does not actually reside in the relevant house does not belong to the person who has the domicile or residence in the relevant house, and therefore his resident registration shall be made.