2012Na64675 Implementation of procedures for change of title of lease

A person shall be appointed.

Attorney ○○○, ○○○○

★★★★ 주식회사

Representative Director 000

Law Firm ○○○, Attorneys ○○-○, Counsel for the defendant-appellant)

Seoul Central District Court Decision 201Gahap86893 Decided June 28, 2012

March 13, 2013

April 17, 2013

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant shall revoke the judgment of the first instance.

A procedure to change the name from the plaintiff to the non-party 40.

1. Basic facts

The reasons for this part of this Court are as stated in the reasoning of the first instance court judgment except for those that the evidence No. 1 to No. 5 "A" is "No. 1 to No. 3 and No. 5". It shall be cited in accordance with Article 420 of the Civil Procedure Act.

2. The plaintiff's assertion

The transfer of the right of lease made by the Plaintiff to △△△△△△○ shall meet the requirements for the transfer of the right of lease under the proviso of Article 19 of the Rental Housing Act and Article 18 of the Enforcement Decree of the same Act. The Defendant is obliged to accept the demand for the transfer of the right of lease under

Even if the Plaintiff did not meet the requirements for the transfer of the right of lease, the Defendant consented to the transfer of the right of lease of this case. The Defendant is obligated to comply with the consent. Moreover, the reversal of the consent as long as the Plaintiff believed that the consent is valid and transferred the right of lease is in violation of the principle of good faith

Article 18 (1) 1 (c) of the Enforcement Decree of the Rental Housing Act excludes cases where the transfer of a right to lease is permitted in cases where the transfer of a right to lease takes place abroad prior to the occupancy of a rental house or money in a foreign country for not less than one year. The deprivation of the right to transfer a right to transfer without being limited to strengthening the requirements for transfer rather than the occurrence of a cause for transfer after the occupancy of a rental house violates the detailed principle of excessive prohibition, the principle of minimum damage, and the principle of balance of legal interests, even in light of the purpose of the Rental Housing Act enactment. The above provision is

The defendant is obligated to implement the procedure to change the name on the right of lease in the name of the plaintiff, which is primarily, in subrogation of △△△△△△△△, to the △△△△△△△.

3. The Rental Housing Act and the Enforcement Decree of the same Act related to the case are listed in the relevant provisions.

4. Determination

A. (1) Article 19 of the Rental Housing Act prohibits, in principle, consumers with speculation or investment objectives from having access to the leased housing and satisfies the real residential demand, and allows transfer or sublease only when they obtain a rental business operator’s consent, in special circumstances prescribed by the Presidential Decree. Article 18(1)1(c) of the Enforcement Decree of the same Act provides that “Where a transfer of a rental house, other than a rental house constructed with financial support from the State, a local government or the National Housing Fund, is allowed, one of the special cases where a transfer of a rental house has been made abroad or has been made abroad for more than one year, all the members of the household of a rental house need to “if all the members of the household of the rental house have come to fall under the said reasons after moving into the rental house.”

The Plaintiff failed to meet the requirements for transfer under the Enforcement Decree of the Rental Housing Act and the Enforcement Decree of the same Act. The reasons are as follows.

1. ① The Plaintiff, in addition to entering the Plaintiff as the head of the household in the list of occupants, entered the Plaintiff’s spouse and children as the head of the household, only made the move-in report to the address of the instant house, and there was no actual move-in by either the Plaintiff or any of the household members. The Plaintiff transferred the instant right to lease before the process of moving-in to △△△△△△△△△△△△△△△△△△△, which did not constitute “after the moving-in.” The Plaintiff asserts that the said cause does not fall under “after the moving-in,” and that the said cause was maintained before and after the moving-in. However, as long as the Plaintiff

② The requirement that “in the event of moving abroad or staying abroad for not less than one year,” is only the cause that occurred only to the Plaintiff. There is no evidence to prove that all members of the household have incurred the said cause.

(2) The Plaintiff asserts to the effect that, in the event of the conversion of rent into a deposit, the deposit is more than 2.5 billion won, and that the requirements for the transfer of the right to lease for the instant rental housing, which is the first constructed private rental housing to be converted for sale in lots after two years and six months from the date of occupancy, are not strictly interpreted as in the case of the publicly constructed rental housing. As a result, the Plaintiff continued to work abroad as well as before and after moving into the instant housing, and that the Plaintiff, who was moving into a sole householder, has moved into a foreign country, thereby satisfying the requirements prescribed in the Enforcement Decree

However, in cases where the transfer under the Enforcement Decree of the Rental Housing Act and the Enforcement Decree of the same Act is permitted, as in the case of this case, it cannot be interpreted by expanding the scope of "in cases where the right of lease is transferred without moving into the leased house" to include the following reasons.

① As seen earlier, the Plaintiff failed to meet the requirements for occupancy, which is explicitly required by the Enforcement Decree of the Rental Housing Act and the Enforcement Decree of the same Act.

(2) Article 18 of the Enforcement Decree of the Rental Housing Act only relaxs the requirements for the selection of a transferee where the transfer of a right of lease is permitted with respect to privately constructed rental housing (it is possible for a person selected by a lessee to transfer a right of lease) or other criteria for cases where transfer of a right of lease is permitted.

(3) It is interpreted that the requirements for restriction on transfer prescribed by the Enforcement Decree of the Rental Housing Act and the Enforcement Decree of the same Act may be applied differently notwithstanding the wording, on account of the fact that the amount of lease deposit

In order to prevent speculation or investment demand in advance and to meet the real demand for housing, the purpose of the Rental Housing Act is to undermine the legal stability of the area.

B. It is reasonable to regard the transfer of a right of lease as null and void if the transfer of a right of lease violates the provision on restriction on transfer of a right of lease by failing to meet the "requirements for occupancy" under the Rental Housing Act and the "requirements for occupancy" under the Enforcement Decree of the same Act without satisfying the "requirements for occupancy". The reasons are as follows.

(1) Where a lessee transfers a right of lease or subleases a rental house in violation of Article 19 of the Rental Housing Act, there is no provision regarding its validity.

On April 27, 1993, Article 11 of the Rental Housing Construction Promotion Act (amended by Act No. 3783, Dec. 31, 1984; Act No. 3783, Dec. 31, 1984; Act No. 3783, Dec. 31, 1984) stipulated that the transfer of the right of lease or the sub-lease in violation of the prohibition under paragraph (2) cannot be asserted against the third party as the right. After that, in the process of changing the name to the Rental Housing Act on April 27, 1993, the Rental Housing Construction Promotion Act provided that the provision allowing the transfer of the right of lease or sub-lease in certain cases as prescribed by the Presidential Decree was deleted.

The former Rental Housing Construction Promotion Act completely prohibits transfer of right of lease, etc., but it is stipulated that transfer of right of lease in violation of the former Rental Housing Construction Promotion Act cannot be invalidated in consideration of its side effects and can not be asserted against a third party, but it can be deemed that the transfer of right of lease after limitation is permitted, but the violation is not recognized.

(2) Article 41 of the Rental Housing Act provides that Article 19 of the same Act shall be punished by imprisonment with prison labor for not more than 2 years or by a fine not exceeding 20 million won, for a person who transfers a right of lease of a rental house or sub-lease a rental house,

③ Article 41-2(1) of the Housing Act provides that Article 41-2(3) of the same Act provides that where the status of being selected as a housing occupant has been resold in violation of Article 41-2(1) of the same Act, if a project proprietor pays a certain amount of money to the purchaser in violation of Article 41-2(1), the project proprietor shall be deemed to have acquired the relevant house on the date of payment. The Rental Housing Act does not have any provision that grants a new legal effect in certain cases based on the transfer of right of lease or sub-lease that violates

[ rather, the provision that it is impossible to oppose a third party by an act of transfer, etc. in violation of the Restriction on Lease Transfer, etc. as the name of the Rental Housing Act has been changed is deleted.

Meanwhile, the former Housing Construction Promotion Act, which regulates a house constructed and supplied for the purpose of lease before the enactment of the Housing Construction Promotion Act and other houses with the consent of a business entity separately from the Rental Housing Construction Promotion Act or the Act on Rental Housing, has established a provision that limits the transfer or sub-lease of a rental house for a specific period other than the cases prescribed by Presidential Decree. However, this provision does not uniformly invalidate the validity of the transfer or sub-lease in violation of the provision on the restriction period, but only provides that the business entity may cancel the lease contract and demand the withdrawal from the lessee by paying a certain amount of money to the lessee. In addition, if the lessee is a bona fide tenant, the former Housing Construction Promotion Act does not allow the cancellation or the demand for withdrawal. The pertinent provision on the Housing Construction Promotion Act was deleted by a partial revision of Act No. 5908 on February 8, 199, and there is no provision that limits the transfer or sub-lease of a rental house separately from the current Housing Act to the Housing Act.

(2) Whether the duty of consent to transfer of the right of lease and the principle of trust and good faith are violated

As long as the act of transferring the right of lease is null and void because it does not meet the requirements for the transfer of the right of lease on the ground of the occurrence of the cause of the transfer, the plaintiff has no right to seek consent to the transfer of the right of lease of this case, regardless of whether the act of receiving a certain amount is legitimate or whether the defendant consented

Even if the Defendant previously consented to the transfer of the right of lease, the null and void transfer of the right of lease is not a valid one. In addition, in a case where the Defendant acknowledged the obligation to consent to the transfer of the right of lease null and void, as seen below (3) as a result of the omission of legal transactions without any restriction, and thus, the Defendant’s failure to comply with the request for consent to the transfer of the right of lease is not allowed as it violates the principle of trust and good faith. (3) In a case where the restrictive provisions such as the transfer of the right of lease are viewed as a regulatory provision, even if the provisions of the Rental Housing Act that restrict the transfer of the right of lease and the Enforcement Decree of the same Act that restrict the transfer of the right of lease cannot be deemed as null and void, the Plaintiff cannot seek consent to the transfer of the right of lease for the following reasons, and the Defendant’

① Even if the Enforcement Decree of the Rental Housing Act, which is merely a regulatory provision under the Enforcement Decree of the same Act, cannot be deemed null and void, it is only between the Plaintiff and the lessee, and the lessee. Accordingly, whether the act of lease transfer can be asserted against the Defendant, who is the rental business operator, is a separate issue.

② Although it was impossible to oppose a project proprietor by violating the restriction period under the Housing Act, it is difficult for the project proprietor to assert legal relations arising from the resale after the lapse of the restriction period without taking a measure of rescission or redemption of the contract on the ground thereof. It is not only because the regulation on the resale is merely a regulation on the restriction period, but also because the obstacle factor, which existed prior to the time of claiming legal relations arising from resale to the project proprietor, was extinguished. The Plaintiff failed to meet the requirement that “after the occupancy of the right to lease,” which was the cause of the transfer of the right to lease, at the time of the transfer of the right to lease, and fails to meet the above requirements until the time thereafter. There is no basis for the Defendant to consent to the transfer of the right to lease, which still fails to meet the

③ Even if the Defendant consented to the transfer of the right of lease, this cannot be met on behalf of the requirements for the transfer of the right of lease as required by the Rental Housing Act and the Enforcement Decree of the same Act. If the Defendant acknowledges the obligation to consent to the transfer of the right of lease that was not satisfied the requirements required by the Act solely on the ground that the Defendant consented to the transfer of the right of lease before, it would be unreasonable to recognize the transfer of the right of lease without limitation

C. Article 18 (1) 1 (c) of the Enforcement Decree of the Rental Housing Act provides that Article 18 (1) 1 (c) of the Enforcement Decree of the Rental Housing Act shall not be deemed to be in violation of the Constitution, except where Article 18 (1) 1 (c) of the Enforcement Decree of the Rental Housing Act moves abroad prior to the occupancy of the rental house or where the transfer of the right of lease is permitted for payment abroad for

① The provisions of the Rental Housing Act and the Enforcement Decree of the same Act on the restriction on transfer or sub-lease of a right of lease are legislative purpose to block access by consumers with speculation or investment purpose in advance and to meet the real demand for housing. In the event of transfer of a right of lease, whether the transferor, etc. was speculative or investment purpose or whether the right of lease was transferred or sub-leased due to unavoidable reasons is an internal decision.

If there is a different legal regulation on a contract, the criteria for the distinction between the parties to the contract should be determined based on the objective acts or phenomena revealed externally, such as the time, process, contents, and terms of the contract, and whether the intent of the court below constitutes any one of them should be determined reasonably through such criteria. In addition, in setting such criteria, all requisitions, which appear to conform to the purpose of the actual residence, cannot be stipulated in the law, and it is inevitable to determine the scope of legislative policy within the scope of the purpose

② Considering the anticipated occupancy costs and pecuniary losses, such as directors’ expenses, etc., in cases where a lessee leases a rental house for the purpose of residing in the rental house, it is highly likely that the lessee would actually move into the rental house. On the other hand, in cases of speculation or investment, it is highly likely that the lessee would dispose of the leased house before reaching the actual occupancy.

In addition, whether there is a charge, etc. paid as a result of the transfer of the right of lease or the sub-lease between the transfer of the right of lease and the fulfillment of the sub-lease after the conclusion of the lease contract, and the amount can also be an indication distinguishing the demand for speculation or investment from the demand for actual residence.

③ The Enforcement Decree of the Rental Housing Act and the Enforcement Decree of the same Act distinguish between speculation and investment demand and actual demand for residence on the basis of the minimum classification of occupancy, and, in the case of the remaining opinions, such as the difference between the time spent between the conclusion of a lease agreement and the transfer of the right of lease, or the amount of fees paid, it appears to be excluded from the standard in that there is no objective indicator to distinguish them. In light of the subject and legislative purpose of the above Act and the legislative purpose, such provision does not seem to have been created beyond or abusing the discretion of the legislative policy, and thus, it cannot be said that

④ Even if the right to legally transfer is restricted due to the foregoing provision regardless of the purpose of speculation or investment before moving into a rental house, such restriction is inevitable due to the standard set at least to distinguish speculation or investment demand from actual residential demand, and it is difficult to view that it violates the principle of minimum damage or the principle of balance of legal interests, etc. in light of the fact that social and economic losses, compared to cases where the transfer of right of lease, etc. is restricted for other reasons after moving

5. Conclusion

The plaintiff's claim shall be dismissed on the ground that it appears to be either mother or there is no ground. The judgment of the first instance is justifiable, and the plaintiff's appeal is dismissed.

The presiding judge Kim Jong-soo

Judges Lee Byung-chul

Judge Han Sung-soo