판례연구 : 대항력과 우선변제권을 갖춘 임차인이 강제경매를 신청한 경우 배당요구를 하지 않아도 일반 채권자보다 우선하여 배당을 받을 수 있는지 여부 -대법원 2013. 11. 14. 선고 2013다27831 판결을 중심으로- = Case Study : Whether Creditor may Request of Distribution and She can Receive Distribution in advance General Creditor in Case of Mandatory Auction Sales filed by Tenant who has an Opposing Power and Preferential Payment Right focusing on the Supreme Cour

다국어 초록 (Multilingual Abstract)

Real estate sale or estate liquidation is a sale or auction to dispose of a substantial portion of the materials owned by a person who is recently defaulted or who must dispose of his or her personal property to facilitate a clearance of debt. A sheriff`s sale is a public auction sale of property held by the sheriff pursuant to a writ of execution issuing by court order to seize and sell the property to satisfy a judgment, after notice to the public. Tenant who has an opposing power and preferential payment right on housing or business building must have filed the request for distribution and report on a right before the end of the request for distribution, wish to get preferential payment with using the other creditors mandatory auction sale procedure. The request for distribution is a creditor`s act on the execution law who want to get payment within the proceeds of sales from the assets and it must be submitted by the forms described cause of action and amount of controversial that included interest, cost, and collateral claims. After then, the reason is that why precluding effects is applied for the prevention of sudden damages and clarified the legal relationship within the auction sale procedure which various stakeholders are participated in the proceeding. Up until now, by the way, there is no clear interpretation regarding whether additional distribution must be imposed in the case of the tenant filed mandatory auction sales with opposing power and preferential payment right by directly obtained title of execution. Merely lower court ruling and the first and second trial decision of the subject case of this research rendered that “under the certain situation that general creditor who has court decision that imposed executory power may file the auction sales and as a tenant who has a preferential payment right may request distribution, if she wanted to receive distribution as a tenant who has the preferential payment right over the status of general creditors, she must not have file additional form of request distribution as a creditor but she must have submit a prima facie evidence of lease agreement and copy of resident registration to the court at the end of request of distribution period.” This result makes an unstable situation for the general creditor or tenant more than before the court holding rendered. The court rendered that no need to request additional distribution at the end of request distribution period to get recognized preferential payment right, and also no need to submit documents to show she has preferential payment right if there is appeared preferential payment right in the report of present-condition investigation. Therefore, the appearance of subject case of this annotation has carried an important meaning by wiped out tenant and creditors legal status who`s position were unstable for long time.