(영문) 의정부지방법원 2015.6.18.선고 2014가합55274 판결

1. The defendant expressed his/her intention to consent when the plaintiff transferred the right of lease to B, in relation to the right of lease, the right of lease of the ○○ Dong-dong, Sungnam-gu, Sungnam-si, a party branch of a district, and a party branch of a district-level, a party branch of a district-level.

2. The plaintiff's primary claim is dismissed.

3. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Purport of claim

The primary purport of the claim is that the defendant expresses his intention to consent to the transfer of the right of lease to the plaintiff of Sungnam-si, Sungnam-gu, the party branch of the party branch of the party branch of the party branch of the party branch of the party branch of the party branch of the party branch of the party branch of the party branch of the Gu.

Preliminary claims: as stated in the text.

Reasons

1. Presumed factual basis

A. On February 28, 2006, pursuant to Article 16 of the former Housing Act (amended by Act No. 7959 of May 24, 2006), the Defendant approved a public construction rental apartment construction project plan for a public construction rental apartment with respect to the land of Sungnam-si, the development site within the Sungnam-si, and constructed ○○ apartment (hereinafter “○○ apartment”) on the above land.

B. On May 17, 2006, the Plaintiff entered into a loan agreement with the Defendant on deposit 215,687,000 won, monthly rent 494,000 won, and the lease term of the instant apartment (hereinafter “the instant lease agreement”) with respect to the instant ○○○ apartment site, which is a public rental housing, (hereinafter “the instant apartment unit”). The Plaintiff reported the lease term of the instant apartment unit ten years with a ten-year lease term.

C. The Plaintiff resided with her husband and her children in the instant apartment, and was at the present domicile around August 2014, and was at the same domicile as her husband and her family living together with her family members.

D. From March 2014, the Plaintiff requested the Defendant to consent to the transfer of the right to lease of the instant apartment from around March 2014, but the Defendant refused this.

[Grounds for Recognition] Uncontentious Facts, Gap 1, 2, 5, 6 evidence, Eul 1, the purport of the whole pleadings

2. Related Acts and subordinate statutes;

It is as shown in the attached Table related Acts and subordinate statutes.

3. Summary of the parties' arguments;

A. The plaintiff 1:

The Plaintiff constitutes an exceptional reason for transferring the right of lease under the Rental Housing Act and subordinate statutes because the Plaintiff transferred his/her residence due to work, etc. (related to 1). Although the Defendant expressed his/her intention to terminate the lease agreement, the Plaintiff may transfer the right of lease without complying therewith (related 2). Since the Plaintiff’s transfer of the right of lease does not need to be identified as the assignee at the time of the transfer of the right of lease, the Plaintiff requested the Defendant to consent to the transfer of the right of lease under the circumstances not specified by the transferee (related 3 and the primary claim). If the Plaintiff needs to be specified as the transferee at the time of the transfer of the right of lease, the Plaintiff is entitled to directly select the transferee as B and seek the consent to the transfer of the right of lease (related 4 and the preliminary claim), and as long as it has not been confirmed that B is not a homeless person by the Defendant, the Defendant is obligated to consent to the transfer of the right of lease to B (related 5 and the preliminary claim).

(b) the defendant;

The Plaintiff does not fall under the exceptional reasons for transferring the right of lease under the Rental Housing Act and subordinate statutes, and even if the Plaintiff was able to transfer the right of lease under the Rental Housing Act and subordinate statutes, as long as the Defendant expressed his/her intent to terminate the lease agreement, the Plaintiff can only terminate the lease agreement and cannot transfer the right of lease (instant 2). Even if the Plaintiff is able to transfer the right of lease, the transferee should be specified on the premise that the Plaintiff is able to transfer the right of lease. Although the Plaintiff is able to transfer the right of lease, the Plaintiff cannot directly select the assignee even if he/she is able to transfer the right of lease, and even if the Plaintiff is able to select the assignee, the Plaintiff is obligated to verify whether B is homeless, who is selected as the original transferee, even if the Plaintiff is able to select the assignee, and as long as B has not been verified from the materials submitted by the Plaintiff to him/her as homeless, the Defendant does not have any obligation to consent to the transfer of the right of lease.

4. Issues and determination

A. Whether the Plaintiff constitutes an exceptional ground for the transfer of the right of lease under the Rental Housing Act and subordinate statutes (related to 1)

Article 19 of the Rental Housing Act and Article 18 of the Enforcement Decree of the same Act prohibit, in principle, a lessee of a publicly constructed rental house from transferring its right of lease to another person. In the event that a lessee submits materials proving that the lessee falls under exceptional reasons to a lessee, a rental business operator is obligated to accept the demand for transfer of right of lease unless there is a special reason. In light of the purport of the relevant Act and subordinate statutes, such as the Rental Housing Act for the purpose of stabilizing the living of the people, exceptional reasons for which the obligation to consent to transfer the right of lease is recognized need to be strictly interpreted

Article 19 of the Rental Housing Act and Article 18 (1) 1 (a) of the Enforcement Decree of the same Act provide that cases where a right of lease can be transferred with the consent of a rental business entity exceptionally, one of the members of a household of a lessee of a publicly constructed rental house who reported the terms and conditions of lease for at least ten years shall move his/her residence for reasons, such as work (i) after moving into a rental house; (ii) transfer his/her residence to a Si/Gun/Gu, which is different from the administrative district of a Si/Gun/Gu (limited to an autonomous Gu); and (iii) transfer his/her residence to a Si/Gun/Gu, which is a different Si/Gun/Gu (limited to an autonomous Gu); and (iv) transfer the distance between his/her residence and the newly relocated residence (referring to the shortest straight distance) at least 40 kilometers.

The fact that the Plaintiff entered into a lease agreement on the instant apartment, which is a publicly constructed rental house on May 17, 2006, and resided there, and that the Plaintiff reported the terms and conditions of the lease of the instant apartment, with the ten-year lease contract period, on the premise that the Plaintiff reported the terms and conditions of the lease of the instant apartment. In full view of the overall purport of the pleadings in the evidence (including the numbers and numbers) No. 3, 4, 13, and 17, it is recognized that the Plaintiff transferred the instant apartment to ○○○○○○, along with his husband, who was employed by the Plaintiff around August 5, 2014 while the Plaintiff resided in the instant apartment, around 17, 2006.

According to the above facts, the Plaintiff is entitled to transfer the right of lease on an exceptional basis with the consent of the rental business operator as mentioned above.

(b) Whether the right of lease can be transferred even if the lease contract can be terminated (the key issue 2).

1) The defendant's assertion

Although the Defendant agreed to the instant lease agreement and recommended the Defendant to refund the deposit from the Defendant, the Plaintiff filed the instant lawsuit seeking the transfer of the right of lease by refusing to receive the so-called premium from the lessee. This is contrary to the purpose and purport of the Rental Housing Act, which aims at stabilizing the residential life of the people, and thus, is not obliged to consent to the transfer of the right of lease by the Defendant.

2) Determination

In this case, the Defendant recommended the Plaintiff to terminate a lease agreement, and thus, the Plaintiff appears to be able to conclude a lease agreement. However, considering the following circumstances acknowledged in light of whether the relevant laws, such as the Rental Housing Act, were enacted and the language and text, it is reasonable to deem that the Plaintiff is able to transfer the right of lease with the Defendant’s consent without concluding the lease agreement.

① The purpose of the Rental Housing Act is to stabilize the residential life of citizens, etc. (Article 1), and Article 10 of the Housing Lease Protection Act provides that "The Housing Lease Protection Act shall apply to matters not prescribed by this Act concerning the supply and management of rental housing," while Article 10 of the Housing Lease Protection Act provides that "no agreement that violates this Act and is disadvantageous to any of the tenants is effective." Thus, it is not permissible to restrict the lessee's right under the Rental Housing Act unless otherwise prescribed by the Act and subordinate statutes.

② Article 19 of the Rental Housing Act and Article 18(1) and (3) of the Enforcement Decree of the same Act provide that all the constituent members of the household of a lessee of a rental house may transfer the right of lease with the consent of the lessee if they fall under a certain reason after moving into the rental house. A rental business operator is required to accept a lessee’s request for the transfer of the right of lease unless there is any special reason, such as the materials submitted by the lessee, etc.

③ The Plaintiff, barring special circumstances, cannot be said to contravene the purpose and purport of the Rental Housing Act, on the ground that the Plaintiff, barring special circumstances, exercised his right to exercise the right of lease against another person by obtaining the consent of the Defendant, who is the rental business operator.

C. Whether the Plaintiff should specify the assignee of the right of lease (related issues 3)

1) Article 18(1)1 of the Enforcement Decree of the Rental Housing Act provides for exceptional reasons and provides for "where a right of lease is transferred to a homeless householder because it falls under any of the following," and Article 18(2) provides for "where a lessee transfers a right of lease to a homeless householder, he/she shall submit data on the exceptional grounds, and Article 18(3) of the Enforcement Decree of the Rental Housing Act provides for "If there are no special problems such as evidentiary materials submitted, he/she shall accept a lessee's request for transfer of the right of lease." In addition, Articles 20 and 42 of the Rental Housing Act, and Article 19 of the Enforcement Decree of the Rental Housing Act provide that a rental business operator shall comply with the relevant Act and subordinate statutes, such as a lessee's qualification for a rental house, and if so, he/she violates this provision, Article 12 of the Enforcement Rule of the Rental Housing Act provides for "where a rental business operator consents to the transfer of a right of lease under each subparagraph of Article 18(1) of the Enforcement Decree of the Rental Housing Act, he/she shall be subject to imposition of a right of a rental house."

2) In light of the text and purport of such relevant Acts and subordinate statutes, it is difficult to interpret that, in the case of publicly constructed rental housing, the lessee has an obligation to consent to the transfer of the right to lease to an unspecified third party without any restriction on the transfer of the right to lease to the lessee. Thus, in order to recognize the obligation to consent to the lessee’s transfer of the right to lease to the lessee, the lessee should at least require the Defendant, who is the lessee, the lessee, to consent to the transfer of the right to lease to a specific third party (the Plaintiff’s primary claim premised on the absence of the obligation to specify the transferee of the right to lease is groundless).

D. Whether the Plaintiff is entitled to select the assignee of the right of lease (related to the issues 4)

1) The defendant's assertion

Article 18 (1) 1 of the Enforcement Decree of the Rental Housing Act provides that only private constructed rental houses and purchased rental houses may be designated as the assignee of the right of lease. Therefore, in the case of publicly constructed rental houses such as ○○ apartment in this case, lessee cannot be selected as the assignee of the right of lease at will.

2) Determination

In full view of the following circumstances recognized in light of the purport and language of the Rental Housing Act, etc., it is reasonable to deem that the Plaintiff can select the assignee when transferring the right of lease.

① It is natural that the lessee can select the assignee of the right of lease in general cases of transfer of the right of lease. It is difficult to find reasons to view otherwise on the ground that such transfer is a transfer of the right of lease.

② The Rental Housing Act and subordinate statutes stipulate that a lessee may transfer the right of lease under a certain condition, but do not stipulate that the lessee shall be selected as a rental business operator.

(3) Article 18(1)1 of the Enforcement Decree of the Rental Housing Act only stipulates that the transferee of the right of lease may be arbitrarily selected by a lessee without limiting the lessee to a homeless householder in the case of a privately constructed rental house or a purchase or rental house. In the case of a publicly constructed rental house, the right of selection of a lessee may not be restricted.

E. Whether the duty to verify who is the transferee of the right of lease B is a non-family head of the household

In full view of the following circumstances recognized in light of the purport and language of the Rental Housing Act, etc., the obligation to verify whether B, a transferee of the right of lease, is homeless is the Defendant, who is the rental business operator, and cannot be said to have the obligation to verify whether the transferee is homeless when the Plaintiff seeks consent to the transfer of the right of lease to the Defendant.

① Article 18(2) of the Enforcement Decree of the Rental Housing Act provides that “A lessee who intends to obtain consent to the transfer of a right of lease shall submit to a rental business operator the materials proving that the lessee falls under each subparagraph of paragraph (1).” Article 18(3) of the Enforcement Decree of the Rental Housing Act provides that “A rental business operator shall accept a lessee’s request for the transfer of a right of lease unless there is any special problem, such as supporting documents submitted by a lessee to a rental business operator pursuant to paragraph (2).” It does not provide that a lessee shall submit the materials proving that the transferee is a homeless householder

② Article 12(2)3 of the Enforcement Rule of the Rental Housing Act provides that “Where a rental business operator of a publicly constructed rental house gives consent to the transfer of a right of lease, he/she shall verify whether a house is owned in accordance with Article 21-2(1) of the Rules on Housing Supply.” Article 21-2(1) of the Rules on Housing Supply provides that “Where a rental business operator of a publicly constructed rental house gives consent to the transfer of a right of lease, he/she shall request the Minister of Land, Infrastructure and Transport to conduct an electronic search of whether a rental business operator owns a house using a housing computer network organized pursuant to the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., according

③ It seems difficult or impossible for a lessee to seek data on whether the lessee is homeless. Considering such circumstances, the Rental Housing Act and subordinate statutes, instead of imposing a lessee’s duty to submit data on whether the lessee is homeless, opening a way to verify it pursuant to Article 21-2(1) of the Rules on the Supply of Housing instead of imposing a lessee’s duty to submit such data.

F. Determination as to the plaintiff's claim

1) As to the primary claim

The Plaintiff constitutes an exceptional cause for transferring the right of lease under the Rental Housing Act and subordinate statutes (a dispute over the point 1), and even if a lease agreement can be terminated, the Plaintiff may transfer the right of lease regardless of such agreement. (2) However, in order to transfer the right of lease, the Plaintiff, a lessee, must seek the consent on the transfer of the right of lease to a high-ranking person by specifying the assignee of the right of lease. (3) The Plaintiff’s primary claim premised on the Plaintiff’s failure to specify the assignee of the right of lease, is without merit.

2) As to the conjunctive claim

The Plaintiff is entitled to select the assignee of the right of lease. The Defendant is obligated to verify whether the assignee of the right of lease is homeless. If the assignee is confirmed to be homeless, the Defendant shall consent to the transfer of the right of lease, and if the assignee is confirmed not to be homeless, the consent may not be given (Article 5). Unless there is any evidence to prove that B selected as the assignee of the right of lease is not a homeless person, the Defendant is obligated to express his/her consent to the Plaintiff in good faith of the right of lease of the instant apartment. The Plaintiff’s preliminary claim is well-grounded.

3. Conclusion

Therefore, the plaintiff's primary claim is dismissed as it is without merit, and the conjunctive claim is accepted as it is decided as per Disposition.

Judges

Judges Park Jong-chul

Judge Cho Young-soo

Judges Kim Dong-hee

Site of separate sheet

Related Acts and subordinate statutes

Rental Housing Act;

Article 1 (Purpose)

The purpose of this Act is to promote the construction of rental housing and to stabilize the residential life of people by prescribing matters necessary for the construction, supply, and management of rental housing and the housing rental business.

Article 2 (Definitions)

The terms used in this Act shall be defined as follows:

1. The term "rental housing" means constructed rental housing or purchased rental housing provided for rent;

2. The term " constructed rental housing" means housing falling under any of the following items, and the type thereof shall be prescribed by Presidential Decree:

(b) Housing leased, as prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport, as prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport, which is constructed by a housing construction business operator registered pursuant to Article 9 of the Housing Act and has not been sold until the inspection of use, among housing constructed after obtaining approval

Article 3 (Relationship with other Acts)

(1) The Housing Act and the Housing Lease Protection Act shall apply to matters not prescribed by this Act concerning the construction, supply and management of rental housing.

Article 16 (Restrictions, etc. on Sale of Rental Housing)

(1) No rental housing shall be sold unless the following periods (hereinafter referred to as "mandatory rental period") have elapsed:

1. For rental houses constructed with the finance of the State or a local government or rental houses constructed for the purpose of permanent lease with funding from the National Housing Fund, 50 years from the starting date of lease of such rental houses;

2. 30 years from the commencement date of lease in cases of rental housing which is constructed with a financial support from the State or a local government and from the National Housing Fund.

2-2. For long-term lease housing, 20 years from the commencement date of lease of such rental housing;

3. With respect to any constructed rental house other than those under subparagraphs 1 and 2, a house the term of lease of which is fixed and reported at least ten years when terms and conditions of lease are reported pursuant to Article 26, ten years from the commencement date of lease of such rental house.

4. A period prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport, in cases of constructed rental houses or purchased rental houses which do not fall under subparagraphs 1 through 3.

Article 19 (Restriction on Sublease of Rental Housing)

A lessee of a rental house shall not transfer the right of lease (including sale, donation, other acts gathering the alteration of a right, but excluding inheritance) or may not sublease the rental house to any third person: Provided, That he/she may transfer or sublease the rental house if he/she has obtained an agreement from the rental business operator in cases prescribed by Presidential Decree.

Article 20 (Terms and Conditions, etc. of Rental Housing)

(1) Standards for the terms and conditions of lease, such as qualifications for, method of selection of, and deposit for, rental housing, and rents, shall be prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport.

Article 41 (Penal Provisions)

(4) Any of the following persons shall be punished by imprisonment with labor for not more than two years or by a fine not exceeding 20 million won:

1. A person who leases or causes another person to lease a rental house by fraud or other improper means;

2. A person who is not a member of the association and receives fees or money in addition to housing prices, as an intermediary for joining the association;

15. A person who transfers a right of lease of a rental house, subleases a rental house, or arranges such transfer, in violation of Article 19;

Enforcement Decree of the Rental Housing Act;

Article 2 (Types of Constructed-Rental Houses)

The types of constructed rental housing under subparagraph 2 of Article 2 of the Rental Housing Act (hereinafter referred to as the "Act") shall be as follows:

1. Publicly constructed rental housing: Housing falling under any of the following items:

(c) Rental housing constructed after obtaining approval for a project plan pursuant to Article 16 of the Housing Act on a housing site developed by a public project (hereinafter referred to as "public housing site");

Article 18 (Permission for Transfer, etc. of Right of Lease)

(1) "In cases prescribed by Presidential Decree" in the proviso to Article 19 of the Act means any of the following:

1. Where all constituent members of a lessee of a rental house who falls under Article 16 (1) 3 and 4 of the Act transfer the right of lease to a homeless householder (referring to a person selected by the lessee at his/her own discretion in cases of privately constructed rental housing or purchased rental housing) or subleases his/her house on the leased house because they fall under any of the following items after moving into the leased house:

(a) Where all the provisions of paragraphs (i) through (iii) are applicable:

1) Relocation of the residence due to reasons such as work, occupation, or treatment of disease (limited to cases where the head of a medical institution under Article 3 of the Medical Service Act deems it necessary to provide dental treatment for more than one year);

2) Relocation of the dwelling of a Si/Gun/Gu (limited to an autonomous Gu; hereinafter the same shall apply) that is different from the administrative district of a Si/Gun/Gu (limited to an autonomous Gu; hereinafter the same shall apply) that is currently resident

3) The distance between the present place of residence and the new place of residence (referring to the shortest straight line) shall be at least 40§¯: Provided, That where the separate criteria are prescribed by ordinances of the relevant Special Metropolitan City, Metropolitan City, Do, or Special Self-Governing Province in consideration of the distance to and from work, traffic conditions, etc., such criteria shall apply.

(b) Where they move to a house owned by inheritance or marriage;

2. Where any person who works for an institution to which a relocation has been made under any of the following Acts or any such institution is supplied with rental housing before such institution moves and subleases it:

(a) The Special Act on Balanced National Development;

(c) special laws for the construction of a multifunctional administrative city in Yeongi-Gongju Area for Follow-Up Measures for New Administrative Capital.

(d) The Special Act on the Construction and Support of Innovation Cities Following Relocation of Public Agencies;

3. Where a lessee leaves a rental house due to marriage or divorce, and any of the following persons who intends to continue residing in the relevant rental house changes his/her householder to his/her own, and the lessee mainly changes the changed household:

(a) Spouse, lineal blood relatives and siblings;

4. Where a lessee of privately constructed rental housing or purchased rental housing [excluding purchased rental housing supplied by the State, a local government, the Korea Land and Housing Corporation, or a local government (hereinafter referred to as "public-purchasing rental housing")] transfers the right of lease or subleases the rental housing due to reasons other than those prescribed in subparagraphs 1 through 3.

(2) A lessee who intends to obtain consent to the transfer of a right of lease or the sublease of a rental house pursuant to the proviso to Article 19 of the Act (excluding cases falling under paragraph (1) 4) shall submit to a rental business operator data proving that the lessee falls under any of paragraph (1) 1 through 3. In such cases, in cases falling under paragraph (1) 1 (a), a rental business operator may request the lessee to submit a housing lease contract, a lease contract, a lease contract, a lease contract for a house, etc. related to the transfer to another Si/Gun

(3) A rental business operator shall accept a lessee's request for the transfer of the right of lease or for sublease unless special problems exist, such as the documents proving that the lessee has submitted to the rental business operator.

(4) An institution or person who subleases a rental house pursuant to paragraph (1) 2 shall occupy or move into an occupant within three months after the expiration of the contract period of sublease, and the contract period of sublease shall not exceed two years.

Article 19 (Qualification of Lessee of Rental Housing and Method of Selection thereof)

(1) The qualifications for and methods of selection of lessees of publicly constructed rental housing constructed after obtaining approval for a project plan under Article 16 of the Housing Act, among constructed rental housing pursuant to Article 20 (1) of the Act, shall be as prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport, and the qualifications for and methods of selection of lessees of other

Enforcement Rules of the Rental Housing Act;

Article 12 (Qualifications, etc. for Rentals of Publicly Constructed Rental Housing)

(1) The qualifications and methods of selecting tenants of publicly constructed rental houses under Article 19 (1) of the Decree shall be governed by the Rules on the Supply of Housing Units.

(2) Where a rental business operator for a publicly constructed rental house under Article 19 (1) of the Decree falls under any of the following cases, he/she shall in advance verify whether he/she owns a house pursuant to Article 21-2 (1) of the Rules on Housing Supply:

3. Consent to transfer of rights of lease or sublease of rental houses under the subparagraphs of Article 18 (1) of the Decree;

(3) A rental business operator for a publicly constructed rental house shall verify whether the rental house has been owned by a lessee of the relevant rental house under Article 21-2 (1) of the Rules on Housing Supply at least once a year.

Rules on Housing Supply

Article 21-2 (Electronic Search of Housing and Confirmation of householder, etc.)

(1) Where a project undertaker (where a project undertaker is the State or a local government, referring to a Mayor/Do Governor; hereafter the same shall apply in this Article) intends to select occupants of housing or to determine occupants on the project plan, he/she shall request the Minister of Land, Infrastructure and Transport to conduct electronic search of persons selected as occupants (including persons eligible for preliminary occupancy; hereafter the same shall apply in this Article) or persons determined as eligible for entry on the project plan in accordance with the methods and procedures prescribed by the Ordinance of the Ministry of Land, Infrastructure and Transport for homeless period and housing ownership using the housing computer network organized pursuant to the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. In such cases, where the occupants' savings manager receives subscription and appoints occupants on behalf of the State or a local government, the agency designating occupants' savings shall request the Minister of Land, Infrastructure and Transport to request an agency designating occupants' savings to conduct electronic

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