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1. Revocation of a judgment of the first instance;
2. The plaintiff's main claim is dismissed.
3. South Korea between the Defendant and C.
Reasons
1. Basic facts
A. Upon the existence of the Plaintiff’s right to collateral security and secured claim, D Apartment 105, 1702 (hereinafter “instant apartment”) owned by H on September 25, 2015, prior to acquiring the ownership of the Plaintiff’s right to collateral security and secured claim.
On August 3, 2012, the establishment registration of the instant apartment was completed on August 3, 2012, the maximum debt amount of KRW 41,600,000, the debtor C and the plaintiff of the right to collateral security.
(The plaintiff was the second secured creditor on the apartment of this case). 32,918,620 won borrowed from the plaintiff on the same day was the secured creditor of the above secured debt.
B. The Defendant entered into a lease agreement between the Defendant and C, and the Defendant’s residential Defendant entered into a lease agreement with C on October 24, 2014, with a deposit of KRW 14,000,000 (contract deposit of KRW 4,000,000, the remainder of KRW 10,000,000, and the down payment date of the instant apartment, October 24, 2014, respectively; and the remainder payment date of the rent of KRW 100,000,000 (hereinafter “instant lease agreement”).
On January 12, 2015, the Defendant completed the move-in report to the apartment of this case, and received a fixed date in the instant lease contract on the same day.
In addition, the defendant lived with his mother E from that time to October 27, 2015.
C. On March 9, 2015, a limited liability company specialized in ESW 1412, which was transferred from the new bank that was the first mortgagee of the instant apartment in the auction procedure, filed an application for voluntary auction of the instant apartment with the Jung-gu District Court on March 9, 2015. The said court rendered a decision to commence auction on March 10, 2015, and the entry registration of the decision to commence auction was completed on March 18, 2015.
The defendant, as a housing lessee, filed a report on the right and made a demand for distribution within the completion period for demand for distribution.
On October 27, 2015, the court against the plaintiff's objection to a distribution has the right of priority repayment as a tenant of small amount under the Housing Lease Protection Act.