Plaintiff (Attorney Park Il-hee, Counsel for the plaintiff-appellant)

Defendant 1 and three others

April 5, 2012

Seoul Western District Court Decision 2011Da33811 Decided November 8, 2011

1. The plaintiff's appeal against the defendants is dismissed in entirety.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked.

The amount of 16 million won and 4 million won against Defendant 1 among the distribution schedule prepared by the above court on June 1, 2011, in relation to the case of an application for auction of real estate rent in Seoul Western District Court 2010taeng 9463, the amount of 16 million won and 9 million won against Defendant 2, the amount of 12 million won and 12 million won against Defendant 3, the amount of 12 million won and 12 million won against Defendant 4, and the amount of 170,26,565 won and 239,26,565 won and the amount of 12 million won against the Plaintiff.

Preliminaryly, the dividend amount of 16 million won against Defendant 1 in the above distribution schedule shall be 5,573,540 won, 4 million won, 1,393,380 won, and 5,573,540 won, 9 million won, 3,135,120 won, and 4,180,150 won, 12 million won for Defendant 3, 4,180,150 won, and 1,2 million won for Defendant 4, and 170,26,565 won for the Plaintiff, respectively, shall be corrected as 215,190,685 won.

1. Basic facts

A. On February 1, 2002, Nonparty 1 and Nonparty 2 purchased from Nonparty 4 the Han River-ro 1 (number 1 omitted) to 142.1 square meters (hereinafter “land before division”) and the Han River-ro 1 (number 2 omitted) to 16.5 square meters in Yongsan-gu Seoul Metropolitan Government, a building on each of the above land, and the Sejong River-ro 1 (number 2 omitted) to 16.5 square meters in total, a building on each of the above land, and the Han River-ro 2nd and 38 square meters in each of the above land (hereinafter “instant building”). On February 25, 2002, the registration of ownership transfer is completed with respect to each of 1/2 shares of Han River-ro 1 and 2 shares in each of the above land.

B. On July 12, 2003, Nonparty 3 purchased the land before subdivision and the building of this case from Nonparty 1 and Nonparty 2, and completed the registration of ownership transfer on August 12, 2003, respectively. After which, Nonparty 3 completed the registration of ownership transfer on October 7, 2003 with respect to each share of 46.3/142.1 out of the land before subdivision, Nonparty 5 and Nonparty 6 completed the registration of ownership transfer on December 3, 2003 with respect to the remaining share of 49.5/142.1 out of the above land.

C. On May 14, 2004, the land before subdivision was divided into approximately 49.5 square meters (number 3 omitted), approximately 46.3 square meters (number 4 omitted), and approximately 46.3 square meters (number 1 omitted). On June 25, 2004, the land of this case was in the name of the Plaintiff, and the land of this case was in the name of Nonparty 5, the above (number 4 omitted), approximately 46.3 square meters and approximately 46.3 square meters in the name of Nonparty 6, respectively, on June 22, 2004.

D. Meanwhile, the Defendants are those who leased part of the instant building. ① Defendant 1 entered into a lease agreement with Nonparty 1 as to the right side of the second floor of the instant building with a deposit of KRW 20 million around April 1, 2001; ② Defendant 2 set the deposit of KRW 25 million around March 30, 2002 as to the left side of the first floor; ③ Defendant 3 set the deposit of KRW 12 million around September 20, 200 as to the middle side of the second floor; ④ Defendant 4 entered into a lease agreement with Nonparty 1 as to the right side of the first floor (hereinafter “each of the instant lease agreement”); Defendant 1 entered into a fixed date of KRW 30,300 on September 20, 200 as to the right side of the second floor; and Defendant 203.21 on March 21, 2002 as to the right side of the instant building; and Defendant 21 on March 21, 2008.

E. On June 1, 2011, the execution court, as a tenant of the small amount of claims, of which the land in this case was in progress, the Seoul Western District Court 2010 other and 9463. The execution court, as a tenant of the small amount of claims on June 1, 201, distributed each of the KRW 16 million to Defendant 1 and 2, and each of the KRW 12 million to Defendant 3 and 4, as a tenant with the third fixed date, distributed each of the KRW 4 million to Defendant 1, as a tenant with the fourth fixed date, and distributed each of the KRW 9 million to Defendant 2 as a tenant with the fourth fixed date, who is the owner of the land. The plaintiff prepared a distribution schedule that distributes each of KRW 170,226,565 to the Plaintiff, as the owner, stated an objection against the total amount of dividends to the Defendants, and filed a lawsuit of demurrer against the Defendants on June 3, 2011.

【Ground for Recognition: Facts without dispute, entries in Gap evidence 1 through 4, and 6 (including branch numbers), the purport of the whole pleadings

2. Determination as to the cause of action

A. The plaintiff's assertion

1) The primary argument

At the time of entering into each of the instant lease agreements, Nonparty 1, a lessor, is not the owner of the instant building and its site (in the case of Defendants 1, 3, and 4), or merely the right of preferential payment under the Housing Lease Protection Act (in the case of Defendant 2), and thus, it cannot be acknowledged that the Defendants were entitled to preferential payment under the Housing Lease Protection Act. Even if Nonparty 3 succeeded to each of the instant lease agreements, the Defendants did not have a new fixed date, and thus,

In addition, the owner of the instant building is Nonparty 3, and the owner of the instant land is different from the owner of the leased house and the site as the Plaintiff, and this was also the same as at the time of the establishment of a new lease agreement due to renewal. Accordingly, it is unreasonable for the Defendants, who are the lessee of the instant building, to receive the distribution from

2) Preliminary assertion

Even if the Defendants could receive dividends from the proceeds from the sale of the instant land, the scope shall be limited to the area ratio (49.5/158.6) of the entire site of the instant building to the area ratio of the instant land (49.5/158.6) (However, the Plaintiff asserted that the above area ratio was 49.5/142.1 and calculated, as stated in the preliminary claim, the amount that the Defendants would receive

B. Determination

1) Relevant legal principles

Article 3-2(2) of the Housing Lease Protection Act provides that a lessee who has the requirements for counterclaim under Article 3(1) and the fixed date indicated in a lease agreement document shall have the right to be paid security deposit in preference to junior creditors and other creditors from the proceeds from the sale of real estate at auction under the Civil Execution Act or public auction under the National Tax Collection Act, and Article 8(1) of the same Act provides that the proceeds from the sale of real estate shall include not only the housing but also the proceeds from the sale of the site. Article 8(3) of the same Act provides that a lessee who has the requirements for counterclaim shall have the right to be paid a specified amount of the security deposit (hereinafter referred to as “small amount of security deposit”) prior to other secured creditors. Article 8(3) of the same Act provides that the scope of and standards for the small amount of security deposit and the small amount of security deposit shall be prescribed by Presidential Decree within the limit of

Therefore, a lessee and a lessee with requisites for counterclaim and a fixed date may exercise preferential rights to repayment from the proceeds of realizing the leased house, even in cases where only the leased house and its site are sold separately from the leased house (see, e.g., Supreme Court Decision 96Da7595, Jun. 14, 1996). Such preferential rights to repayment have the nature of so-called statutory security right, and are recognized to protect a lessee based on the value of the leased house and the site at the time of the establishment of the lease. Thus, the same applies in cases where the leased house and the site owned by the lessor are transferred to another person at the time of the establishment of the lease, and the owner of the leased house and the site are different (see, e.g., Supreme Court Decision 2004Da26133, Jun. 21,

Meanwhile, a lease to which the Housing Lease Protection Act applies may not be limited to cases where a lease contract is concluded between a lessee and a lessor who is the owner of a house. It includes cases where a lease contract is concluded with a lessor who is not the owner of a house and has the right to lawfully conclude a lease contract on a house (see Supreme Court Decision 2007Da38908, 38915, Apr. 10, 2008). A renewed lease can exercise a preferential right to payment in the same order as the previous lease with the opposing power and the fixed date (see Supreme Court Decision 90Da11377, Aug. 14, 190).

2) In the instant case:

According to the aforementioned evidence, it is acknowledged that Nonparty 1, a lessor at the time of entering into each of the instant lease agreements, was not the owner of the instant building and its site, or was merely the owner of the 1/2 equity right, and that the Defendants did not newly have a fixed date after the change of the owner of the instant building.

However, the following circumstances, which are acknowledged by comprehensively taking account of the overall purport of pleadings in the statement in Eul evidence No. 8, i.e., ① on February 25, 2002, the building and the land before subdivision of the building of this case were transferred from Non-Party 4 to Non-Party 1 and Non-Party 2, and from Non-Party 1 and Non-Party 2 on August 12, 2003, and during that process, Non-Party 2 (the address in the register is the same as Non-Party 1) did not raise any objection to the conclusion of each lease contract of this case. ② Non-Party 1 acquired ownership of 1/2 of the building of this case and the land before subdivision of the building of this case from Non-Party 1 to Non-Party 3 on February 25, 2002, respectively, and the right to preferential reimbursement of the lease contract of this case was established as the debtor on July 24, 2003.

Therefore, the Defendants may exercise the preferential right to reimbursement of each lease deposit as a small lessee or a lessee with a fixed date even in the voluntary auction procedure for the land of this case. Accordingly, the Defendants’ primary assertion on different premise is without merit (the Plaintiff shall be deemed to have already received the claim for reimbursement of the deposit deposit or transferred it to another person by deeming that the building of this case is not a residential building, or that the Defendants are not actively responding to the lawsuit of this case, on the ground that the building of this case is not a residential building, or that the Defendants are not actively responding to the lawsuit of this case, and that the preferential right to reimbursement of the site of this case was extinguished by the implied renewal

3) Judgment on the plaintiff's conjunctive assertion

The plaintiff asserts that the dividend amount of the defendants should be limited to the ratio of the area occupied by the land of this case among the entire site of the building of this case. However, the plaintiff's assertion is without merit, even though the plaintiff can demand the allocation or reimbursement of the liability for return of deposit for lease in relation to the owner of another site of the building of this case or the owner of the building of this case and the non-party 3 who succeeded to each lease contract of this case, in accordance with the legal principles of subrogation or indemnity. Thus, the scope of the defendants' authority to exercise the right to preferential payment against the building of this case and its site cannot be limited to the plaintiff'

3. Conclusion

The plaintiff's primary and conjunctive claims against the defendants are all dismissed as they are without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal against the defendants is dismissed as it is without merit. It is so decided as per Disposition.

Judges Park Jae-ap (Presiding Judge)