In cases where a lessee, who has an opposing power before the registration of establishment of a mortgage on a leased building, has increased the lease deposit under an agreement with the lessor after the registration of establishment of a mortgage, whether the increased deposit can be set up against the successful bidder of the building (negative), and whether such legal doctrine likewise applies to the increased deposit after the registration of attachment by a disposition on default (affirmative)

Article 3 of the Housing Lease Protection Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 2 others (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant-appellant-appellee)

Plaintiff (Attorney Byung-il et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Jeong-sung, Counsel for the defendant-appellant)

Seoul Eastern District Court Decision 2009Na8149 decided January 13, 2010

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

We examine the grounds of appeal.

If a lessee has acquired a right of lease with opposing power prior to the registration of establishment of a mortgage on a leased building, he/she may oppose the mortgagee by the said right of lease. However, if a lessee agreed to increase the lease deposit after the registration of establishment of a mortgage and paid the deposit for increased portion of the deposit, the agreement cannot be asserted against the mortgagee since it would prejudice the mortgagee’s rights. Therefore, the lessee can only assert that the name of the building which was knocked out on the basis of the mortgage cannot be ordered until the repayment of the deposit for rent is made, and it cannot be asserted against the owner by the increased deposit after the registration of establishment of a mortgage (see Supreme Court Decision 90Meu11377, Aug. 14, 1990). This legal principle applies likewise to cases where a lessee, who has opposing power, agrees to increase the lease deposit with the lessor after the registration of attachment by a disposition on default and paid the excessive portion.

In this regard, the court below is just in holding that the defendant, a lessee, could not oppose the plaintiff as the successful bidder due to the right of lease based on the increased portion, as long as the time of increase in the lease deposit of this case has completed multiple registration of seizure on the building of this case, and there is no error of law in the misapprehension of legal principles as to the

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

Justices Jeon Soo-ahn (Presiding Justice)