Whether the effective publication method of indirect occupant's resident registration for housing lease is a valid method for indirect occupant's resident registration (negative)

The opposing power stipulated in Article 3 (1) of the Housing Lease Protection Act can be recognized not only in a case where the lessee resides in the relevant house and directly occupies it, but also in a case where he occupies it indirectly by means of other person's possession. However, since the tenant who does not actually reside in the relevant house is not a person who has an address or residence in the relevant house (Article 6 (1) of the Resident Registration Act), the tenant's resident registration cannot be deemed a legitimate resident registration under the Resident Registration Act, and therefore, the tenant who is only an indirect occupant cannot be deemed as a legitimate resident registration. Therefore, only in the case where the direct occupant who actually resides in the relevant house has completed his own resident registration pursuant to the occupancy and purchase relationship with the tenant, only if the direct occupant who actually resides in the relevant house has completed his own resident registration, the tenant's opposing power can legally be acquired

[1] Article 3 (1) of the Housing Lease Protection Act and Article 6 (1) of the Resident Registration Act

Plaintiff (Attorney Ha Young-young, Counsel for the plaintiff-appellant)

Defendant (Law Firm Young-soo, Attorneys Kim Chang-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2000Na9408 delivered on September 8, 2000

The judgment below is reversed. The case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below maintained the right to preferential lease on October 20, 1997 between the plaintiff and the non-party 1 to the non-party 2 to move the lease deposit for the first and fourth floor of the residential facilities and multi-family houses (hereinafter referred to as "the building of this case") as indicated in its judgment, and concluded a lease contract with the period of 130,000,000 and 12 months from November 20, 197, and completed the move-in report with the location of the building of this case as of October 23, 1997, and obtained a fixed date as to the lease contract as of the 20th day of the same month. After the completion of the building of this case, the plaintiff acquired the right to lease from the non-party 1 to the non-party 2 and the non-party 2 to move the leased part of this case to the non-party 1 to the non-party 2 and the non-party 2's residential property of this case.

2. The opposing power stipulated in Article 3 (1) of the Housing Lease Protection Act can be acknowledged not only in a case where the lessee resides in the relevant house and directly occupies it, but also in a case where he occupies it indirectly through means of other person's possession. However, since the tenant who does not actually reside in the relevant house is not a person who has an address or residence in the relevant house (Article 6 (1) of the Resident Registration Act), his resident registration cannot be deemed a legitimate resident registration under the Resident Registration Act, and therefore, the tenant who is an indirect occupant cannot be deemed as a legitimate resident registration under the Resident Registration Act. Therefore, only the indirect occupant does not legally meet the opposing power, and only in a case where the direct occupant who actually resides in the relevant house has completed his resident registration in accordance with the occupancy and intermediary relationship with the lessee, the lessee's opposing power can be legally acquired against the third party.

According to the reasoning of the lower judgment, the Plaintiff, a lessee of the second floor 202 of the instant building, was indirectly occupied the leased part of the instant building by having Nonparty 2, who is the birthe, without directly occupying the leased part. Therefore, in order to acquire the opposing power against the third party, Nonparty 2, who directly occupies the leased part of the instant building, should complete the Plaintiff’s resident registration. However, even based on the facts acknowledged by the lower court, Nonparty 2 did not transfer the leased part to the location of the instant building and maintained its previous resident registration without transferring the leased part to the location of the instant building. Therefore, the Plaintiff’s lease is deemed to have failed to meet the requisite to set up under Article 3(1) of the Housing Lease Protection Act.

Nevertheless, the court below determined on April 16, 1998 that the plaintiff met the requirements for opposing power under Article 3 (1) of the Housing Lease Protection Act on the premise that the resident registration of the plaintiff and the non-party 2's occupancy are included in the tenant's resident registration, which is an indirect occupant, which is the requirement for opposing power. Therefore, the court below erred in the misapprehension of legal principles as to the requirements for opposing power under Article 3 (1) of the Housing Lease Protection Act, and it is obvious that such illegality affected the conclusion of the judgment. The ground of appeal pointing this out is with merit.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be 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.

Justices Lee Yong-woo (Presiding Justice)