Whether a lessee who intends to obtain consent to the transfer of a right of lease for publicly constructed rental shall submit data stating information by which a lessee can identify a transferee in order to verify whether a lessee owns a house owned by a lessee (affirmative)

Article 18(1) of the former Enforcement Decree of the Rental Housing Act (amended by Presidential Decree No. 26749, Dec. 22, 2015; hereinafter the same shall apply) provides that cases where the transfer of the right of lease or the sub-lease of a rental house is exceptionally permitted under the delegation by Article 19 of the former Rental Housing Act (wholly amended by Act No. 1349, Aug. 28, 2015; hereinafter the same shall apply) provides that the former Enforcement Decree of the Rental Housing Act (amended by Presidential Decree No. 26749, Dec. 2, 2015; hereinafter the same shall apply) provides that, in principle, the transfer of the right of lease to a lessee who owns a rental house shall be prohibited by the Ordinance of the Ministry of Land, Infrastructure and Transport under Article 28(1) of the former Enforcement Decree of the Rental Housing Act by deeming that all the members of a household of the rental house have no public interest compared to other rental housing after the occupancy of the rental house, shall be strictly restricted by the transfer of the right to a rental business operator.

In full view of the contents and purport of the relevant provisions, a lessee who intends to obtain consent to the transfer of a right of lease for publicly constructed rental housing shall submit data stating information by which a lessee can identify a transferee, such as the name and resident registration number of a lessee, so that a lessee can verify whether a lessee owns a house of a lessee, and a rental business operator shall be deemed liable to accept a lessee’s request for the transfer of a right of lease, unless there exist special circumstances, such as confirmation that a lessee is a lessee according to the procedures prescribed by the former Rental Housing Act and subordinate statutes. In such cases, in order for a rental business operator to refuse a lessee’s request for consent to the transfer of a right of lease, he/she shall verify the lessor’s ownership of a house

Article 19 of the former Rental Housing Act (wholly amended by Act No. 13499, Aug. 28, 2015); Article 18 of the former Enforcement Decree of the Rental Housing Act (Amended by Presidential Decree No. 26749, Dec. 22, 2015); Article 12 (2) of the former Enforcement Rule of the Rental Housing Act (wholly amended by Ordinance of the Ministry of Land, Infrastructure and Transport, the Enforcement Rule of the Special Act on Private Rental Housing (wholly amended by Ordinance of the Ministry of Land, Infrastructure and Transport, No. 25 (3) of the current Enforcement Rule of the Special Act on Public Housing), Article 21-2 (1) of the former Enforcement Decree of the Rental Housing Act (wholly amended by Ordinance of the Ministry of Land, Infrastructure and Transport, No. 268, Dec. 29, 2015); Article 21-2 (1) (see Article 52 (1) of the current Enforcement Rule of the Special Act on Public Housing)

Plaintiff (Law Firm Dong, Attorneys Cho Young-ho et al., Counsel for the plaintiff-appellant)

Gwangjin-gu Co., Ltd. (Law Firm LLC et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2015Na2006430 decided November 11, 2015

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Regarding the interpretation and validity of Article 18(3) of the former Enforcement Decree of the Rental Housing Act

The main text of Article 19 of the former Rental Housing Act (wholly amended by Act No. 13499, Aug. 28, 2015; hereinafter the same) prohibits, in principle, the transfer of a right of lease or the sub-lease of a rental house. The proviso provides that “it may be transferred or sub-lease if a rental business operator’s consent is obtained in cases prescribed by Presidential Decree.” Accordingly, Article 18(1)1 of the former Enforcement Decree of the Rental Housing Act (amended by Presidential Decree No. 26749, Dec. 22, 2015; hereinafter the same shall apply) provides that one of the cases prescribed by Presidential Decree under the proviso of Article 19 of the former Rental Housing Act is one of the cases where all members of a household of a public rental house move or reside overseas after moving into a rental house, and transfer or sub-lease a rental house to a homeless member for at least one year. In addition, Article 19(2) of the same Act provides that a rental business operator shall obtain the above consent of a lease business operator or sub-lease.

For the reasons indicated in its holding, the lower court determined that Article 18(3) of the former Enforcement Decree of the Rental Housing Act, which was delegated by Article 19 of the former Rental Housing Act to “reasons for exceptionally allowing the transfer or sub-lease of a right of lease,” does not merely stipulate the possibility of interpreting the interpretation of the former Rental Housing Act, or that it cannot be deemed that the lease business operator excessively restricted the freedom of occupation or the right of property, etc. of the lease business operator, as it is embodied based on its legislative intent

In light of the relevant legal principles and records, the lower court did not err by misapprehending the legal principles on the principle of statutory reservation or the principle of excessive prohibition, thereby adversely determining the validity of the relevant provisions of the Enforcement Decree.

2. Regarding the right to select the lease transferee

The lower court determined that, in light of the purport and language of relevant Acts and subordinate statutes, such as the former Rental Housing Act, the lessee could select a transferee when he/she transfers the right of lease.

In light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on the right to select a lessee as a transferee of a rental house, as alleged in the grounds of appeal.

3. As to the identity of the assignee of the right of lease and the verification of whether he owns a house

A. Article 18(1) of the former Enforcement Decree of the Rental Housing Act provides that cases where transfer of a right of lease or sub-lease of a rental house is exceptionally permitted pursuant to delegation of Article 19 of the former Rental Housing Act shall be strictly limited to cases where all the members of a lessee of a rental house have moved to a foreign country or have no house in a foreign country for more than one year after moving into the rental house and transfer the right to lease to a non-household member. Article 18(2) of the former Enforcement Decree of the Rental Housing Act provides that a lessee who wishes to obtain consent to transfer a right of lease shall submit materials proving that the said reason falls under the foregoing, and Article 18(2) of the former Enforcement Decree of the Rental Housing Act provides that a lessee shall be granted a request for transfer of a right of lease by a lessee to a rental business operator for the purpose of acquiring a right of lease by means of an information and communications network under Article 28(1) of the former Enforcement Decree of the Rental Housing Act (wholly amended by Ordinance of the Ministry of Land, Infrastructure and Transport to the Enforcement Rule of the Rental Housing Act).

In full view of the contents and purport of the relevant provisions, a lessee who intends to obtain consent to the transfer of a right of lease for publicly constructed rental housing shall submit data stating information by which a lessee can identify a transferee, such as the name and resident registration number of a lessee, so that a lessee can verify whether a lessee owns a house of a lessee, and a rental business operator shall be deemed liable to accept a lessee’s request for the transfer of a right of lease, unless there exist special circumstances, such as confirmation that a lessee is a lessee according to the procedures prescribed by the former Rental Housing Act and subordinate statutes. In such cases, in order for a rental business operator to refuse a lessee’s request for consent to the transfer of a right of lease, he/she shall verify the lessor’s ownership of a house

B. Based on its stated reasoning, the lower court: (a) deemed that the Plaintiff submitted data that could identify the assignee of the right of lease to the extent that it can confirm whether the lessee owns the house; (b) thus, the Defendant ought to accept the Plaintiff’s request for consent to the transfer of the right of lease unless the Nonparty proves special issues, such as whether the Nonparty, who is the lessee of the right of lease, owns the house by means of computer request, etc.; and (c) failing to verify whether the Nonparty was the owner of the right of lease, the lower court determined that the Plaintiff was liable to express his/her consent to the transfer of the right of lease, on the ground that the Nonparty

In light of the above legal principles and records, the above determination by the court below is just, and it did not err by misapprehending the legal principles as to the person liable to verify whether the lessee owns the house by the lessee of the publicly constructed rental house.

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Seon-soo (Presiding Justice)