If the owner of the leased object and the owner of the site are different at the time the lease is concluded, the lessee may not exercise preferential right to payment from the proceeds from the sale of the

A tenant or a tenant with a requisite to set up against the lessee and a fixed date under the Lease Protection Act may exercise a preferential right to payment from the proceeds from the sale of the site, even in cases where only the site is auctioned separately from a leased building, but if the owner of the leased object and the site are different from the owner of the leased object at the time of lease formation

Article 14 of the Commercial Building Lease Protection Act

2012 Single 14393 Demurrer against distribution

AAA

BB Guarantee Foundation and two others

August 28, 2012

September 18, 2012

1. All claims filed by the plaintiff (appointed party) and the selector are dismissed.

2. The costs of litigation shall be borne by the plaintiff (appointed party) and the selected party.

Of the distribution schedule prepared by the court on June 4, 2012, the amount of dividends to the Republic of Korea, the amount of dividends of the defendant BB Guarantee Foundation, the amount of dividends of the defendant BB Guarantee Fund, the amount of dividends of the defendant CB Guarantee Fund, 000 won for the selected parties, and the amount of dividends to the selected parties, the amount of dividends of the amount of dividends to the selected parties shall be KRW 000,000, and the amount of dividends to the selected parties shall be KRW 000,000, for the selected parties, KRW 00,000, for each of the designated parties, and KRW 00,000.

1. Facts of recognition;

(a) Building, land ownership, lease, etc.;

1) 1980. 6. 12.경 안양시 만안구 OO동 0000 대 109㎡， OO동 000 대 109㎡ (이하 '이 사건 토지'라고 한다) 외 2필지 지상에 지하 2층，지상 1층의 건물(이하 '이 사건 건물'이라 한다)이 건축되었다.

2) On March 24, 1998, Ansan completed the registration of ownership transfer on March 23, 1979 with respect to 6/38 shares in each of the instant lands (hereinafter “instant shares”), and after the death of Ansan, Kim HH on January 13, 2003 as to the instant shares, Kim HH completed the registration of ownership transfer on December 29, 2002 due to inheritance by consultation division, while the proposal II completed the registration of ownership transfer with respect to 4/38 shares in each of the instant lands on March 8, 2006, and 23/38 shares in each of the instant lands on February 14, 2008.

3) Meanwhile, since he acquired the ownership of the 4/38 portion of the instant building on December 18, 2006, he continued to acquire the ownership of the 4/38 share of the instant building (23/38 shares as of July 13, 2007) and owned the instant building solely by acquiring the ownership of the 4/38 share of the instant building on January 3, 2008.

"4) Al II entered into the following lease agreements (hereinafter referred to as "each of the instant lease agreements") with the designated parties, CCC, etc., and the designated parties, CCC completed the move-in report, etc. as listed below. On January 5, 2009, the mother, the mother, upon the death of thisJ on January 5, 2009, Z was solely inherited the status of the above lessee (hereinafter referred to as the "Plaintiffs") (hereinafter referred to as the "appointed parties") and the designated parties, hereinafter referred to as the "Plaintiffs").

1) On January 11, 2011, at the request of the Defendant Credit Guarantee Fund, which is a creditor of Kim H, a creditor of Kim H, the procedure was initiated to commence a compulsory auction on January 11, 201 with respect to each of the instant shares (hereinafter “instant auction procedure”).

2) On April 1, 2011, the Plaintiffs reported rights and demanded a distribution on the grounds of each of the above lease agreements to the executing court.

3) On June 4, 2012, when distributing the amount of KRW 000 to be actually distributed at the above auction procedure, the court of execution prepared a distribution schedule (hereinafter referred to as the "distribution schedule of this case") under which the defendant BB Guarantee Foundation, who is the person having the right to demand distribution, distributes the amount of KRW 00 to the head of Ansan-si, the person having the right to issue (the pertinent tax) and KRW 000 to the head of Seocho-si, the second priority, and KRW 00 to the head of Ansan-si, the person having the right to issue the second priority, and KRW 00 to the defendant Credit Guarantee Fund, the applicant creditor, respectively.

4) The Plaintiffs appeared on the aforementioned date of distribution, raised an objection to the distribution amount of the Defendants, and filed a lawsuit of demurrer against distribution on June 8, 2012.

[Reasons for Recognition] The entry of Gap evidence Nos. 1 through 12 (including the number, if any), and the purport of the whole pleading

2. The plaintiffs' assertion and judgment

A. The plaintiffs' assertion

The plaintiffs claim that the distribution schedule of this case should be modified, as stated in the purport, since they are tenants or small tenants meeting the requirements for counterclaim and the fixed date set forth in the Housing Lease Protection Act or the Commercial Building Lease Protection Act (hereinafter referred to as the "Lease Protection Act"), and they can exercise preferential rights to the proceeds from the sale of the site in cases where the object of lease and its site are sold together, as well as in cases where the object of lease and its site are sold at auction separately from the object of lease.

B. Determination

1) A lessee and a lessee with a requisite to set up against the lessee and a fixed date under the Lease Protection Act may exercise preferential right to payment from the proceeds of the sale of a site, even if the leased object and the site thereof are sold at auction separately from the leased house. This Act applies to cases where the site owned by the lessor was transferred to another person at the time of the establishment of the lease, and the owner of the leased object and the site differs from each other. However, if the owner of the leased object and the site are different from the owner of the leased object at the time of the establishment of the lease, the lessee may not exercise preferential right to payment from the proceeds of the sale of the site (see Supreme Court Decision 2004Da26133, Jun. 21,

2) At the time of entering into each of the instant lease agreements with the Plaintiffs, I cannot accept the Plaintiffs’ above assertion on the grounds that, as seen earlier, the Plaintiff could not acquire preferential rights as provided by the Lease Protection Act with regard to the proceeds from the sale of shares in the instant case, the Plaintiff cannot obtain preferential rights to reimbursement as provided by the Lease Protection Act, and on the other premise, the Plaintiff’s assertion is not acceptable.

3. Conclusion

Then, the plaintiffs' claims are dismissed as it is without merit. It is so decided as per Disposition.