[1] Whether the validity of the right of lease of a house registered or with opposing power after the senior mortgage to be extinguished by a successful bid may be asserted against the successful bidder (negative)

[2] Requirements for a public announcement method to meet the requirements for opposing power of resident registration under Article 3 (1) of the Housing Lease Protection Act

[3] In a case where Party A, who completed the registration of ownership transfer of a house and completed the move-in report, sold it to Party B while residing together with the wife, and agreed to continue to reside in the house again from the former and thereafter thereafter, and thereafter the registration of ownership transfer in the name of Party B has been made, the time when Party A, as a lessee under the Housing Lease Protection Act (i.e., the date when Party B’s wife has opposing power as a lessee under

[1] In a case where real estate for auction purposes is sold at a successful bid, the right of lease with either registered or opposing power is extinguished concurrently, and the successful bidder can not be deemed to be included in the transferee of the leased house as stipulated in Article 3 of the Housing Lease Protection Act, so the right of lease cannot be asserted against the successful bidder.

[2] Article 3 (1) of the Housing Lease Protection Act, which provides as the requirement for opposing power along with the delivery of a house, is prepared by a public announcement method that enables a third party to clearly recognize the existence of a right of lease for the safety of transaction. Whether the validity of a public announcement of a lease is determined based on which the third party can recognize the existence of a right of lease as the resident registration. Therefore, it is insufficient to say that a public announcement method that can satisfy the requirements for opposing power of resident registration is simply a formal resident registration for the purpose of satisfying the requirements for opposing power of resident registration. It should be sufficient to say that the third party can recognize that the possession relationship indicated by the resident registration is the possession mediating the right of lease.

[3] In a case where Gap completed the registration of ownership transfer of a house, completed the registration of ownership transfer with the wife, sold it to Eul, and agreed to continue to reside at the same time with the wife, and thereafter thereafter, Eul concluded a lease agreement with the lessee Eul as the wife of Eul, it was difficult for the third party to recognize that the third party is the possession of a right of lease mediating the lease, not the ownership of the wife of Eul, before the registration of ownership transfer from Eul is made. Thus, the wife's resident registration is not effective as a lawful publication method, and only on the date when the ownership transfer registration under Eul is made, the ownership transfer registration under Eul's name shall be valid as a tenant from the day following the date on which the ownership transfer registration under Article 3 (1) of the Housing Lease Protection Act is made.

[1] Article 3 (1) of the Housing Lease Protection Act, Articles 608 (2) and 728 of the Civil Procedure Act / [2] Article 3 (1) of the Housing Lease Protection Act / [3] Article 3 (1) of the Housing Lease Protection Act

[1] [2] [3] Supreme Court Decision 98Da32939 delivered on April 23, 1999 (Gong1999Sang, 993) / [1] Supreme Court Decision 86Meu1936 delivered on February 24, 1987 (Gong1987, 525) Supreme Court Order 89Meu3043 delivered on January 23, 1990 (Gong1990, 516) / [2] Supreme Court Decision 94Da27427 delivered on April 28, 1995 (Gong195Sang, 1963)

[Judgment of the court below]

Defendant (Attorney Lee Jae-sung, Counsel for the defendant-appellant)

Seoul High Court Decision 99Na17496 delivered on September 22, 1999

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

The grounds of appeal and supplementary appellate brief are also examined within the scope of supplement.

In the event of a successful bid for the real estate for auction purposes, the right of lease registered or with opposing power after the senior mortgage is extinguished, and the successful bidder can not be deemed to be included in the transferee of the leased house as prescribed in Article 3 of the Housing Lease Protection Act, so the right of lease cannot be asserted against the successful bidder (see, e.g., Supreme Court Decisions 98Da32939, Apr. 23, 1999; 89Meu3043, Jan. 23, 1990).

On the other hand, Article 3(1) of the Housing Lease Protection Act provides for the requirements for opposing power along with the delivery of a house, and as a means of public announcement that enables a third party to clearly recognize the existence of a right of lease for the purpose of transaction safety. Whether the validity of a public announcement of a lease is determined depending on which the third party can recognize the existence of a right of lease as a resident registration. Thus, it is insufficient to say that a public announcement method that can satisfy the requirements for opposing power of resident registration is simply a formal resident registration to be made. The extent that the third party can recognize that the possession relationship indicated on the basis of resident registration is the possession that is the medium of the right of lease (see Supreme Court Decisions 98Da32939, Apr. 23, 199; 94Da27427, Apr. 28, 1995).

In accordance with the facts duly determined by the court below, the non-party 1 entered into a lease agreement with the non-party 2, who is the wife, after completing the moving-in report on the resident registration on April 15, 1995. The non-party 1 entered into a sale contract to sell the apartment of this case to the non-party 3 on May 12, 1996. As to the payment method, the non-party 3 took out the apartment of this case as collateral and paid part of the purchase price. The non-party 1 entered into a contract to rent the apartment of this case to the non-party 3 for lease and continuously reside after the non-party 1 entered into the sale contract and substitute the remainder of the sale price as the lease deposit. The lessee entered into the lease agreement with the non-party 1's wife on May 2, 1996 with the non-party 1's wife, and the non-party 3 was successful on May 7, 1996, and the non-party 1 and the non-party 1.

Therefore, it was difficult for the third party to recognize that the apartment of this case was possessed by the non-party 1's wife and the non-party 2's possession mediating the right of lease, not the ownership of the non-party 1's wife, before the transfer of ownership was made. Thus, the non-party 2's resident registration is not effective as a legitimate public announcement method which is the requirement for recognition of the opposing power of the housing lease before May 7, 1996, and only before May 7, 1996, it becomes a valid public announcement method for public announcement of the lease between the non-party 2 and the non-party 3. The non-party 2, from May 8, 1996, which is the day following the day on which the method of public announcement valid pursuant to Article 3 (1) of the Housing Lease Protection Act, has the opposing power as a tenant, and the right of lease of this case can not be extinguished by the successful bidder as well as the right of lease of this case.

In the same purport, the judgment of the court below which rejected the plaintiff's claim for the whole amount on the premise that the effective lease exists because the defendant cannot claim the effect of the lease against the defendant is just, and there is no illegality such as failure to exhaust all necessary deliberations or rejection of the plaintiff's claim without any evidence

The purport of the Supreme Court Decision 98Da32939 Decided April 23, 1999 cited in the ground of appeal is that the real estate owner sells it at the same time and at the same time if the lessee becomes a lessee, a valid publication method for publicly announcing the lease of the former owner and lessee's resident registration should be made. Thus, the above legal principle is not inconsistent with the Supreme Court Decision, since it does not constitute an opposing power on the date the registration of ownership transfer was made.

In addition, it shall be deemed that the bidder expressed his/her intention not to assert the opposing power of the lease to the lessee with the knowledge of the tenant as the tenant with opposing power or that the bidder respondeds to the bidding with the intention to accept the obligation to return the lease deposit in accordance with the empirical rule. Therefore, the successful bidder's refusal of opposing power of the lease contract and refusal to pay the lease deposit cannot be deemed as a violation of the principle of trust and good faith. Since the lease right of this case with opposing power is extinguished at the same time due to the extinguishment of prior mortgage, the successful bidder cannot be deemed to be included in the assignee of the leased house as stipulated in Article 3 of the Housing Lease Protection Act, so the transferee of the leased house shall not be deemed to have succeeded to the status of the tenant. Therefore, Article 3 (2) of the Housing Lease Protection

The judgment of the court below to the same purport is just, and it is not erroneous in the misapprehension of legal principles as to Article 3 (2) of the Housing Lease Protection Act due to the violation of the rules of evidence or the misconception of facts.

All of the arguments in the grounds of appeal are rejected.

Therefore, the appeal is dismissed, and all costs of appeal are assessed against the plaintiff. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Kim Jong-sik (Presiding Justice)