[2] In a case where a tenant’s residential address is different from that on the registry, the mortgagee’s assertion that denies the opposing power of the lease is against the good faith principle

[3] The case reversing the judgment of the court below which concluded that the assertion of the mortgagee who denied the opposing power of the above lease is against the good faith principle, where the tenant who leased a house under construction and completed the resident registration does not coincide with the actual number of houses indicated on the building management ledger and the registry after that, on the other hand

[2] In a case where a mortgagee’s assertion denying the opposing power of a lessee on the ground that his/her resident registration is different from that on the registry, can be exceptionally rejected in light of the principle of good faith, but this is limited by general principles such as the Housing Lease Protection Act, and thus, it may undermine legal stability. Therefore, the mortgagee’s right to exercise a right to collateral security against the other party’s trust cannot be deemed as violating the principle of good faith merely because the mortgagee knew or could have known that his/her resident registration address differs from that on the registry prior to the establishment of the right to collateral security, the mortgagee’s assertion that denies the opposing power of the lease cannot be deemed as a violation of the principle of good faith, and even if the mortgagee knew of the fact that the lessee’s resident registration was erroneous, he/she would obtain the collateral security right on the premise that he/she would acquire the collateral value in such reduced condition, the lessee’s ex post facto loss should be recognized without considering at all.

[3] The case reversing the judgment of the court below which concluded that the above assertion is contrary to the good faith principle without examining whether to investigate the relationship between the mortgagee and the mortgagee's right to lease, the details thereof, the methods of loan and the assessment method of the value of the collateral, and the result that the lessee would incur when accepting the objection of the mortgagee, where the tenant's resident's resident registration on the leased house does not coincide with the actual number of houses indicated on the building management ledger and the registry after the lease, on the ground that

1. As to Defendant 1’s ground of appeal

Whether a lease has the effect of disclosing the lease in relation to a third party who has an interest in the register by acquiring a mortgage after a lessee’s resident registration was made after a lease of a house under construction has been made, shall be determined based on whether the third party’s perspective can be viewed as a person who has an address or residence and is registered as a person who has an address or domicile (see Supreme Court Decision 9Da15597 delivered on September 3, 199, etc.).

The lower court determined that the resident registration indicated as “A 404” which Defendant 1 moved-in report by Defendant 1 is not in conformity with the building management ledger and the actual number of houses indicated on the registry, thereby making it impossible to serve as a valid publication method of the relevant lease. In light of the aforementioned legal principles and the records, the lower court’s determination is justifiable, and there is no error in the misapprehension of legal principles as to the validity of the resident registration, which is a requisite for setting up against the Housing Lease Protection Act, as otherwise alleged.

2. Plaintiff’s ground of appeal

In a case where a mortgagee’s assertion of denying the opposing power of a lessee on the grounds that his/her resident registration is different from that on the register cannot be accepted in light of the principle of good faith, such assertion may be denied exceptionally. However, this is limited to the legal relationship recognized by the Housing Lease Protection Act in accordance with the general principles, such as the principle of good faith, and thus, it may undermine legal stability in its application.

As seen earlier, the issue of whether a lease of a resident is publicly announced should be determined based on whether a lessee is registered as a person who has a domicile or residence in the relevant house due to his/her resident registration in light of social norms. Thus, the circumstance that a mortgagee knew or could have known the circumstance that his/her resident registration address differs from that on the register prior to the establishment of a right to collateral security does not violate the good faith principle merely because the mortgagee knew or could have known that his/her resident registration address differs from that on the register, the mortgagee’s assertion that denies the opposing power of a lease cannot be deemed to violate the good faith principle. The lessee’s subsequent loss after the establishment of a right to collateral security on the premise that he/she knowingly recognized the lessee as a prior right and acquired the security value in the reduced state would obtain unfair profits, even though he/she did not consider at all, should be specifically recognized that the exercise of the right by the mortgagee against the other party’s good faith and would have reached an extent that it cannot be accepted in light of the concept of justice (see, e.g., Supreme Court Decision 91Da3802, Dec.

According to the reasoning of the judgment below, the court below acknowledged the fact that the defendants moved in part of the officetel of this case to "Yel 404" as stated in the lease agreement, and the defendant 2 "Yel 504" as "Yel 504", and as the building management ledger was prepared thereafter, "Yel 404" was indicated as "Yel 404" and "Yel 504" as "Yel 404", and "Yel 504" as "Yel 5 stories 404" respectively, and determined that the above resident registration of the defendant 2 could not be a valid public announcement method of the lease, but since it is common for the plaintiff as a usual security right holder to investigate whether the building was leased in the building which was offered as collateral, the plaintiff was able to be recognized as "504 stories" in the process of grasping the collateral value, and thus, it appears that the plaintiff 2 knew that the above building was in violation of the principle of trust and good faith, and thus, the plaintiff 404" as "Y 504."

However, according to the records, there is no evidence suggesting that the plaintiff was aware of the fact that his address on the resident registration card of the defendant 2 is different from that on the registry, and if the plaintiff was investigated into the existence of the relationship, how the result was investigated, how the loan to the debtor was made and how the collateral value was assessed, how the loan to the debtor was assessed, and what result would result in the plaintiff's objection against the above defendant, and what kind of result would result in the plaintiff's objection against the above defendant. Thus, the court below erred in the misapprehension of the legal principles on the good faith as seen above, which affected the judgment. The part of the grounds of appeal pointing this out is justified.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the Plaintiff, the part against the Plaintiff is reversed, and that part of the case is remanded to the lower court. Defendant 1’s appeal is dismissed, and the costs of appeal are assessed against the Defendant. It is so decided as per Disposition by the assent of all participating

Justices Yang Sung-tae (Presiding Justice)