[2] Whether resident registration is included in resident registration of a tenant's spouse, child, etc. in the resident registration which is the requirement for acquiring opposing power under Article 3 (1) of the Housing Lease Protection Act (affirmative), and whether such a legal principle applies likewise to cases where a Korean national residing abroad under the Act on the Immigration and Legal Status of Overseas Koreans is a tenant (affirmative)

1. Regarding ground of appeal No. 1

According to the records, it is clear that the plaintiff, who is a Korean national residing abroad, at the first day of pleading of the court below, has withdrawn his argument that the plaintiff satisfies the requirements for opposing power under the Housing Lease Protection Act because he was treated as having completed his resident registration with the domestic domicile report. The allegation that the plaintiff withdrawn at the fact-finding court is not allowed to be re-claimed at the court of final appeal, and the contents of the argument

2. Regarding ground of appeal No. 2

A. According to the reasoning of the lower judgment, the lower court: (a) on February 27, 2009, the Plaintiff, a Korean national residing abroad who acquired permanent residency in the United States, leased the instant apartment from the Nonparty at KRW 450 million; and (b) on March 16, 2009, paid the lease deposit and resided together with the Plaintiff’s husband and children, who are the U.S. nationality; (c) on March 6, 2009, the Plaintiff reported the transfer of the place of residence to the Plaintiff on March 6, 2009; and (d) on March 10, 2009, the Plaintiff obtained a fixed date on the lease agreement from the Yongsan District Court of Seoul, Seo-gu, Seoul; and (e) on January 3, 2012, the Plaintiff’s husband and children, who were foreigners, filed a report with the lower court on distribution of KRW 200 million to the Defendant’s place of stay at KRW 1300,000,000,000 for the instant apartment.

Furthermore, the lower court determined that the Plaintiff could not acquire preferential payment rights under the Housing Lease Protection Act on the ground that only the change of foreigner registration and place of stay made by the Plaintiff’s husband and children cannot be deemed to have completed the resident registration, which is the requirement of opposing power under the Housing Lease Protection Act, on the grounds that the change of foreigner registration and place of stay made by the Plaintiff

B. However, we cannot accept the above judgment of the court below as it is.

(1) The change of foreigner registration or the change of foreigner's place of stay should be deemed to have the legal effect equivalent to the resident registration under the Housing Lease Protection Act. The reasons are as follows.

(A) The former Immigration Control Act (amended by Act No. 12421, Mar. 18, 2014; hereinafter “Immigration Control Act”) provides that if a foreigner stays in the Republic of Korea in excess of 90 days from his/her entry, the foreigner shall file a foreigner registration, such as his/her place of stay, with the head of the Regional Immigration Service having jurisdiction over his/her place of stay within 90 days from his/her entry (Articles 31(1) and 32 subparag. 4); if his/her place of stay is changed, he/she shall file a report on the change within 14 days (Article 36(1)); and that the foregoing report on the foreigner registration and the change of his/her place of stay shall replace the resident registration and the move-in report (Article

In addition, the Act on the Immigration and Legal Status of Overseas Koreans (hereinafter referred to as the "overseas Koreans Act") means a national of the Republic of Korea who has obtained a permanent residence of a foreign country or resides in a foreign country for the purpose of permanent residence, and a foreign nationality Korean means a person prescribed by the Presidential Decree from among those who have held a nationality of the Republic of Korea or who have acquired a foreign nationality as a lineal descendant thereof (Article 2), and if a foreign nationality Korean who entered the Republic of Korea as an overseas Korean entry into the Republic of Korea has reported a domestic domicile and a domestic domicile change in accordance with the Immigration Control Act, he/she shall be deemed to have reported

As such, the purpose of the Immigration Control Act is to consider a foreigner as having made a resident registration and a report on change of his/her place of stay under the Resident Registration Act, instead of being able to make a resident registration under the Resident Registration Act, to give legal protection equivalent to the foreigner having made a resident registration if the foreigner has made a report on change of his/her place of stay, and in particular, to give the lessee the effect of giving the opposing power recognized by the Housing Lease Protection Act.

(B) The method of public announcement that enables a third party to recognize the existence of a lease in order to ensure the safety of transaction is limited compared to the resident registration under the Resident Registration Act. However, even in the case of resident registration, the public announcement function is limited to the scope that does not reach the same degree as the real estate registration, and the difference between the effect of public announcement compared with the foreigner registration, etc. is relative.

Meanwhile, the Housing Lease Protection Act (amended by Act No. 12043, Aug. 13, 2013; enacted from Jan. 1, 2014; the Housing Lease Protection Act (hereinafter referred to as the “Housing Lease Protection Act”) imposes an obligation to prepare a fixed date book stating the date of granting a fixed date, rent, deposit, lease term, etc. with an agency granting the fixed date of the housing lease agreement, and a person who has an interest in the housing lease is entitled to request the agency granting the fixed date to provide the above lease information, and includes a foreigner (including a foreign national Korean) as well as a person entitled to obtain the fixed date (Article 3-6). This is intended to reinforce the limited public announcement function of the lease contract, such as a resident registration and a foreigner registration register, and thus, the effect of the public announcement of the lease contract by the fixed date book has no difference between the national and the foreigner. However, it is not deemed that the method of public announcement on the lease contract concluded by a foreigner was newly introduced after the conclusion of the Plaintiff’s lease contract.

(C) Article 2(2) of the Constitution provides that the State shall have the duty to protect overseas Koreans under the conditions as prescribed by the Act. Such constitutional spirit may also be realized even in cases where the family members of the overseas Korean are foreigners or foreign nationality Koreans. In addition, Article 6(2) of the Constitution prohibits discrimination against foreigners by prescribing that the status is guaranteed in accordance with international law and treaties. In particular, the necessity for stability of residence and protection is equal. Accordingly, when interpreting and applying the provisions and legal principles on legal relations concerning the residence of foreigners and foreign nationality Koreans, such constitutional ideology should be realized as far as possible.

(D) Considering the above various points, the legal effect of a foreigner or a foreign national Korean with respect to a foreigner registration or a change of his/her place of stay, or a report on domestic domicile or change of residence in accordance with the Immigration Control Act or the Overseas Koreans Act shall be deemed to be recognized as having the same legal effect as that of a resident registration under Article 3(1) of the Housing Lease Protection Act, which provides as the requirement to acquire the opposing power of a housing lease. This cannot be deemed to be different on the ground that a foreigner

(2) In addition, the requirements for acquiring opposing power under Article 3(1) of the Housing Lease Protection Act include not only the tenant himself/herself but also his/her spouse and children, etc. (see Supreme Court Decision 95Da30338, Jan. 26, 1996, etc.). Such a legal doctrine shall be deemed likewise applicable to cases where a Korean national residing abroad under the Overseas Koreans Act is a tenant pursuant to the amended Resident Registration Act, effective January 22, 2015. Considering that a Korean national residing abroad is unable to obtain opposing power under the Housing Lease Protection Act as he/she is neither a foreigner nor a foreigner, etc. under the Housing Lease Protection Act, because a Korean national residing abroad is a foreigner under a lease contract and a foreign nationality Korean resident or a foreign nationality Korean living together with a foreign nationality Korean resident under the Housing Lease Protection Act, and there is no reason to distinguish legal protection from cases where a foreigner voluntarily enters into a lease contract or a domestic domicile report, etc.

(3) Examining the above facts in light of the above legal principles, the foreigner registration that is a family living together with the plaintiff who is a Korean national residing abroad, and his spouse and children have the same legal effect as the resident registration, which is the requirement for opposing power under the Housing Lease Protection Act, should be deemed to be recognized. Therefore, the plaintiff to whom the apartment of this case was delivered, as the above foreigner registration of the spouse and children living together, who are the spouse and children living together, obtained the opposing power under Article 3(1) of the Housing Lease Protection Act for the apartment of this case.

Nevertheless, the lower court determined that the Plaintiff did not acquire opposing power under the Housing Lease Protection Act. In so doing, the lower court erred by misapprehending the legal doctrine on the validity of foreigner registration by foreigners under the Immigration Control Act, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)