[1] Where a lessee of a house under the former Housing Lease Protection Act has a fixed date on or before the date when the delivery and resident registration of the house was completed, the time when the right to preferential payment under Article 3-2 (1) of the same Act arises (=the following day after the delivery and resident registration of the house

[2] Whether the applicant creditor may extend the amount claimed during the voluntary auction procedure (negative)

[3] In a case where the applicant for voluntary auction indicates only the principal of the loan and states the principal and overdue damages in the amount column for the claim amount, whether the amount of the claim stated in the application form for auction includes the overdue damages (affirmative)

[1] Article 3(1) of the former Housing Lease Protection Act (amended by Act No. 5614, Jan. 21, 1999) provides that even in cases where the lease is not registered, if the lessee completes the transfer of the house and the resident registration, the lease shall take effect against the third party from the following day when the lessee completes the transfer of the house. Article 3-2(1) of the same Act provides that the lessee who has the requisite for setting up against the lessee and the fixed date on the lease agreement document shall have the right to be paid the deposit in preference to junior creditors and other creditors from the proceeds from the sale of the house by auction, etc., and the lessee of the house shall have the right to be paid the deposit in preference to junior creditors and other creditors. The right to preferential payment under Article 3-2(1) of the same Act shall take effect on the basis of the following day after the delivery of the house

[2] In an auction procedure for exercising a security right, the amount to be distributed by an applicant creditor shall be determined to the extent of the amount of the first claim stated in the application for an auction, and thereafter, the applicant creditor may not extend the amount of the claim by submitting a claim statement

[3] In applying for an auction for exercising a security right, the indication of the application for auction shall indicate only the principal of the loan and shall be deemed to include not only the principal of the loan but also the damages in arrears if the principal and the damages in arrears are stated in the column for the amount claimed.

[1] Articles 3(1) and 3-2(1) (see current Article 3-2(2)) of the former Housing Lease Protection Act (amended by Act No. 5614, Jan. 21, 199) / [2] Articles 601 subparag. 3, 658, and 728 of the Civil Procedure Act; Article 204 of the Rules of Civil Procedure / [3] Articles 601 subparag. 3, 658, and 728 of the Civil Procedure Act; Article 204 of the Rules of Civil Procedure

[1] Supreme Court Decision 97Da22393 delivered on December 12, 1997 (Gong1998Sang, 267), Supreme Court Decision 98Da26002 delivered on September 8, 1998 (Gong1998Ha, 2417) / [2] Supreme Court Decision 92Da50270 delivered on January 25, 1994 (Gong1994Sang, 792), Supreme Court Decision 95Da15261 delivered on June 9, 195 (Gong195Ha, 2383), Supreme Court Decision 96Da457 delivered on January 21, 1997 (Gong197Sang, 600), Supreme Court Decision 90Da2987989 delivered on September 28, 197 (Gong1997Da987989 delivered on September 29, 197)

Korean Bank, Inc.

Defendant

Seoul High Court Decision 98Na21207 delivered on August 28, 1998

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

Article 3(1) of the former Housing Lease Protection Act (amended by Act No. 5614, Jan. 21, 1999; hereinafter the same shall apply) provides that even in cases where the lease has not been registered, the right to preferential reimbursement under Article 3-2(1) of the Act shall take effect against the third party from the following day when the lessee completes the transfer of the house and resident registration. Article 3-2(1) of the Act (amended by Act No. 5614, Jan. 21, 1999; Article 3-2(2) of the Act) provides that the lessee who has the requirements for counterclaim under Article 3(1) of the Act and the fixed date on the lease agreement document shall have the right to be paid the deposit in preference to any junior creditors or other creditors from the proceeds from the sale of the house by auction, etc.

According to the reasoning of the judgment below, the court below, after compiling the evidence in its judgment, found that the plaintiff completed the registration of creation of a neighboring mortgage on the apartment of this case owned by the non-party on September 24, 1996, and that the defendant leased the apartment of this case from the non-party on the 19th of the same month and received a fixed date on the lease agreement and completed the moving-in report on the 24th of the same month on the same day as the date on which the moving-in report was made. According to the facts recognized, the defendant acquired the preferential right to payment as stipulated in Article 3-2 (1) of the Act on the 25th of the same month, which is the day following the date on which the moving-in report was completed, and the fact finding and decision of the court below are just and there is no error of law in the misunderstanding of legal principles or misunderstanding of legal principles. The issue

In an auction procedure to exercise a security right, the amount to be distributed to an applicant creditor shall be determined within the limit of the amount of the initial claim stated in the application for an auction, and the amount of the claim may not be expanded by the method that the applicant creditor submits the claim statement (see, e.g., Supreme Court Decisions 96Da39479, Jul. 10, 1998; 96Da457, Jan. 21, 1997; 92Da50270, Jan. 25, 1994).

However, in this case, the plaintiff stated "120,000,000 won in the cover of the application form for auction (Evidence A 19) when applying for an auction for the exercise of security right." However, the loan amount of 120,000,000 won out of the claim amount is clearly stated "amount in arrears at the rate of 18% per annum from February 3, 1997 to the full payment date." In this case, the plaintiff's first credit amount stated in the application form for auction shall be deemed as not only the principal of the loan but also the damages in arrears. The judgment of the court below is just, and there is no reason to dismiss the judgment of the court below on the premise that the plaintiff stated only the principal amount of 120,000,000 won in the application form for auction on the premise that the plaintiff stated only the claim amount.

Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jong-chul (Presiding Justice)