Plaintiff (Attorney Lee Jae-il, Counsel for the plaintiff-appellant)

Meak Agricultural Cooperatives (Attorney Song-hun, Counsel for the plaintiff-appellant)

April 7, 2006

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

Of the distribution schedule prepared by the same court on November 22, 2005, the Seoul Central District Court decided to rectify the amount of KRW 1,546,896 to the plaintiff as KRW 15,50,000, and the amount of KRW 108,00,000 to the defendant as the dividend amount of KRW 93,546,896, among the distribution schedule prepared by the same court on November 22, 2005.

1. Basic facts

A. On March 25, 2004, the Plaintiff concluded a lease contract with the Nonparty on a deposit basis with the amount of KRW 70,000,000 with respect to the lease portion of KRW 202 (hereinafter “the lease portion of this case”) from among the buildings listed in the separate sheet (hereinafter “the lease portion of this case”). Around March 25, 2004, the Plaintiff agreed to pay the Defendant’s secured debt (108,00,000 won with the maximum amount of claim) set forth in the leased portion as the deposit paid by

B. Around that time, the Plaintiff delivered KRW 15,500,000 in total to the Nonparty, but the Nonparty did not repay some of the debt owed to the Defendant.

C. On May 15, 2004, the Plaintiff received the leased portion of the instant case and completed the move-in report on the 17th of the same month.

D. The Plaintiff, around June 2004, concluded a lease agreement with the Nonparty as to the leased portion of this case’s lease deposit amounting to 40,000,000 won, and the lease term was from May 15, 2004 to May 14, 2006, respectively. On June 11, 2004, the Seoul Central District Court’s registry office obtained a fixed date by 3224. The Plaintiff did not pay 24,50,000 won, which is the difference between the lease deposit amounting to 40,000,000 won and the amounting to 15,50,000 won already paid, to the Nonparty.

E. On July 8, 2004, Seoul Central District Court Decision 2004Ma24527 decided on July 8, 2004, the decision to commence the auction of real estate relating to the leased portion was rendered, and on the 15th day of the same month, the decision to commence the auction was completed as the receipt of the Dongjak Registry of the same court (28748).

F. In the above voluntary auction case, the dividend court prepared a distribution schedule with the amount of KRW 109,786,806, which is to be actually distributed after deducting the execution cost on November 22, 2005, and with the first priority order of KRW 239,910, and KRW 108,000,000 to the head of Dongjak-gu, the creditor, and KRW 1,546,896 to the plaintiff, the lessee (a final decision), respectively, in the third priority order.

[Ground of recognition] Facts without dispute, Gap evidence 1 through Gap evidence 4, Eul evidence 1, Eul evidence 2, the purport of the whole pleadings

2. Determination on the cause of the claim

A. The Plaintiff is the cause of the instant claim. Although the Plaintiff, as a small lessee under the Housing Lease Protection Act, was entitled to preferential dividend of KRW 15.5 million, the Plaintiff asserted that the said distribution schedule was unlawful since it was preferentially distributed to the Defendant than the Plaintiff, and the Defendant asserted that the said distribution schedule was lawful merely as the Plaintiff was the most lessee.

B. The legislative purpose of the Housing Lease Protection Act is to ensure the stability of the residential life of citizens by prescribing special cases on the Civil Act concerning residential buildings (Article 1). Article 8(1) of the Housing Lease Protection Act provides that the lessee may be paid a certain amount of the deposit in preference to other secured creditors. In the case of small lessee, even if the deposit is small amount of the deposit, it is a large amount of property, and thus, it is reasonable to guarantee the recovery of the deposit even if the status of other secured creditors is harmed, and it is an exception to the general provisions of the Civil Act. In light of such legislative purpose and the purport of the system, etc., even if the obligee entered into a lease contract with the debtor with respect to the house owned by the debtor and resided therein, the actual purpose of the lease contract is not to use the house, but to protect the lessee as a small lessee under the Housing Lease Protection Act (see Supreme Court Decision 200Da13731, May 28, 2001).

C. In this case, the lease contract of this case was concluded between the plaintiff and the non-party by setting the lease deposit amount of KRW 70,00,000 and the move-in report, which was concluded by the non-party, but the non-party did not repay the defendant's collateral security obligation, unlike the agreement, and the plaintiff, who was too small that the auction of the court regarding the lease of this case will begin with the aim of collecting the claim prior to the priority of the senior secured party by being protected as the small lessee. Thus, even if the plaintiff actually moved in and resided in the leased part of this case, the plaintiff cannot be deemed as a small lessee subject to protection under the Housing Lease Protection Act.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment List omitted]

Level of judge;