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

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

October 16, 2015

Suwon District Court Decision 2014Gahap205726 Decided January 8, 2015

1. The judgment of the court of first instance is modified upon a claim modified by the trial court as follows.

The defendant shall express his/her consent to the transfer of the right of lease to the Nonparty (the date of birth omitted) (the address 1 omitted) (the address 2 omitted).

2. All costs of the lawsuit shall be borne by the defendant.

The judgment of the court of first instance is revoked. The judgment is sought (the plaintiff changed the purport of the claim in the trial).

1. Basic facts

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 a size of 13-1 block 21,437 square meters within the development zone of the Sungnam-si Housing Site from the Sungnam-nam market, and constructed a rental apartment with a rental term of 10 years for a lease obligation on the ground ( Address 3 omitted) (six Dong, 371 households, Busan-si Village Complex eight Apartments, and hereinafter “lease apartment of this case”).

B. On February 17, 2009, the Plaintiff entered into a lease agreement with the Defendant and the instant rental apartment (location 4 omitted) with a rental deposit of KRW 215,687,00,00 per month, and KRW 494,000 per month. Around April 24, 2009, the Plaintiff occupied the instant apartment and resided as a sole householder.

C. On February 25, 2013, the Plaintiff entered the ○○○ University’s △△△△○ University’s commercial academic affairs course, which is located in Australia ( Address 5 omitted), and is currently attending the current school and is expected to graduate on November 21, 2015.

D. The Plaintiff left Korea on February 7, 2012, and returned to Korea on December 29, 2013, and left Korea on March 3, 2014, and is currently residing at “( Address 6 omitted)”.

E. The Plaintiff requested the Defendant to consent to the transfer of the right to lease of the instant apartment, but the Defendant, while consenting to the transfer of the right to lease, recommended the Plaintiff to terminate the lease agreement.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 through 7, Eul evidence 1, 2, and 5 (including branch numbers), the purport of the whole pleadings

2. Relevant statutes;

The Enforcement Rules of the Rental Housing Act, the Rental Housing Act, the Enforcement Rules of the Rental Housing Act, etc. are as shown in attached statutes.

3. Determination

A. The plaintiff's assertion

(1) On January 201, 2013, the Plaintiff is currently going to study in Australia, and is currently going to work in Australia at ○○○ University. In the future, the Plaintiff is expected to live in Australia. Therefore, there is an exceptional reason to permit the transfer of right of lease under Article 18(1)1(c) of the Enforcement Decree of the Rental Housing Act to the Plaintiff.

Dodice, the Defendant expressed his intention to terminate the lease agreement, but Article 18(3) of the Enforcement Decree of the Rental Housing Act imposes the obligation to consent to the transfer of the right of lease on the Defendant, a rental business operator, so the Plaintiff may transfer the right of lease without complying therewith.

Since the right to select the assignee of the right of lease is a lessee, the defendant is obligated to give consent to the appointment of the transferee of the right of lease, who is a homeless person, so long as the plaintiff seeks the consent of the defendant.

Applicant and the plaintiff have no other way to confirm whether the lessee is homeless or not, except the assignee's assertion. If the plaintiff is selected by the transferee and the transferee is found to be not homeless after the transfer of the right of lease upon request of the defendant, the defendant should terminate the lease contract with the transferee pursuant to Article 27 of the Rental Housing Act.

B. Defendant’s assertion

(1) The proviso of Article 19 of the Rental Housing Act stipulates that Article 18(3) of the Enforcement Decree of the Rental Housing Act provides that a rental business operator shall consent to a rental business operator who is not delegated by the Rental Housing Act even though the proviso of Article 19 of the Rental Housing Act delegates to the Presidential Decree that only the grounds for allowing a transfer of a right of lease or a sub-lease. This is against the principle of statutory reservation or the principle of legal advantages, and is contrary to the principle of statutory reservation or the principle of statutory advantages, and excessively infringes on a rental business operator’s freedom of occupation or property rights, which are fundamental rights

Even if there is an exceptional reason for transferring the right of lease under the Rental Housing Act and subordinate statutes to the plaintiff, the plaintiff can only terminate the lease agreement and may not transfer the right of lease, unless the defendant expresses his/her intention to terminate the lease agreement.

Consolidatedly, even if the plaintiff can transfer the right of lease, the plaintiff cannot directly select the transferee of the right of lease.

• Even if the above reasons are not acknowledged, the Plaintiff bears the burden of proving whether the lessee selected by the Plaintiff is homeless, and the documents submitted by the Plaintiff alone cannot be confirmed as homeless by the transferee. Therefore, the Defendant has no obligation to consent to the transfer of the right of lease.

B. Determination

(1) Whether Article 18(3) of the Enforcement Decree of the Rental Housing Act is invalid

㈎ 현행 임대주택법 제19조 에서는 원칙적으로 임차권의 양도 또는 전대를 금지하면서, 예외적으로 ‘대통령령으로 정하는 경우로서 임대사업자의 동의를 받은 경우’ 임차권의 양도 또는 전대를 허용하고 있고, 이에 따라 임대주택법 시행령 제18조 제1항 에서는 예외적으로 임차권의 양도 또는 전대가 허용되는 경우를 규정하고 있는 한편 제3항 에서는 ‘임대사업자는 임차인이 임대사업자에게 제출한 증명 자료 등에 특별한 문제가 없으면 임차인의 임차권 양도 또는 전대 요구를 받아들여야 한다.’라고 규정하여 임대사업자에게 임차권 양도 또는 전대에 대한 동의 의무를 부과하고 있다.

On April 27, 1993, the former Rental Housing Construction Promotion Act (amended by Act No. 3783, Dec. 31, 1984; hereinafter “former Rental Housing Construction Promotion Act”) changed its name into the Rental Housing Act. Under the former Rental Housing Construction Promotion Act, the lessee of the rental housing under the former Rental Housing Construction Promotion Act shall not transfer the right of lease (including sale, donation, and all other acts accompanying changes in the rights, but excluding inheritance) or may not sublease the rental housing to another person (Article 11(1)), and Article 11(2) of the former Enforcement Decree of the Rental Housing Act (Article 11(2) of the former Rental Housing Act shall not oppose the right of the person to whom the right of lease has been acquired or sublet the rental housing in violation of the above provision (Article 11(2) of the same Act). However, the location of the provisions of Article 11 was changed to the Rental Housing Act, and the lessor or the lessor shall not be subject to the consent of the former Enforcement Decree of the Rental Housing Act.

Article 10 of the former Enforcement Decree of the Rental Housing Act stipulates only the reasons why the transfer of the right of lease or the sub-lease is exceptionally permitted, and there was no provision on the obligation of the rental business operator to consent to the transfer of the right of lease or sub-lease. As the former Enforcement Decree of the Rental Housing Act was amended by Presidential Decree No. 19051 on September 16, 2005, Article 18(3) of the former Enforcement Decree of the Rental Housing Act was newly established (Article 10(3)).

In light of the interpretation of the proviso of Article 19 of the current Rental Housing Act and the enactment and amendment process of the Enforcement Decree of the Rental Housing Act, the proviso of Article 19 of the Rental Housing Act stipulates that the Rental Housing Act stipulates that the Rental Business operator's obligation to consent is also stipulated in the Enforcement Decree of the Rental Housing Act, even though the proviso of Article 19 of the

㈏ 한편 법률의 시행령이나 시행규칙은 그 법률에 의한 위임이 없으면 개인의 권리·의무에 관한 내용을 변경·보충하거나 법률에 규정되지 아니한 새로운 내용을 정할 수는 없지만, 법률의 시행령이나 시행규칙의 내용이 모법의 입법 취지 및 관련 조항 전체를 유기적·체계적으로 살펴보아 모법의 해석상 가능한 것을 명시한 것에 지나지 아니하거나 모법 조항의 취지에 근거하여 이를 구체화하기 위한 것인 때에는 모법의 규율 범위를 벗어난 것으로 볼 수 없으므로, 모법에 이에 관하여 직접 위임하는 규정을 두지 않았다고 하더라도 이를 무효라고 볼 수는 없다( 대법원 2009. 6. 11. 선고 2008두13637 판결 등 참조).

Although Article 18(3) of the Enforcement Decree of the Rental Housing Act provides for matters concerning the rental business operator’s duty to consent without delegation of the Rental Housing Act, in light of the following circumstances, Article 18(3) of the Enforcement Decree of the Rental Housing Act does not only stipulate that it is possible to interpret the Rental Housing Act, but also specify it based on the legislative intent of the Rental Housing Act, and it cannot be deemed that it excessively restricted the rental business operator’s freedom of occupation or property right.

① The Rental Housing Act was enacted to ensure the stability of the residential life of the people who lack housing purchase capacity by constructing and supplying rental houses, and to establish a long-term rental house system. Under the Rental Housing Act and the Enforcement Decree of the Rental Housing Act, the Rental Housing Act strictly regulates the qualifications and methods of selecting tenants and the terms and conditions of lease business operators, etc., providing various tax benefits, etc. to guarantee the rights of rental business operators. On the other hand, when a certain period has elapsed, the lessee also guarantees the right of lessee, such as purchasing the rental house at a relatively low price through conversion

② Article 19 of the Rental Housing Act prohibits, in principle, the transfer or sub-lease of the right to lease in order to meet the real demand by blocking the access of consumers with speculative or investment objectives in advance to achieve the above legislative purpose: Provided, That in exceptional cases prescribed by the Presidential Decree, where the transfer or sub-lease is not likely to be exploited as a means of pursuing private interests, the said transfer or sub-lease is allowed with the consent of the rental business operator. Accordingly, Article 18(1) of the Enforcement Decree of the Rental Housing Act provides for the grounds for allowing the transfer or sub-lease of the right to lease on an exceptional basis, such as specifying the “member

③ The transfer of right of lease entails the transfer of the lessee status, brings about the change of the user and the beneficiary of the leased object in the case of sub-lease, and brings about the change of the trust relationship between the lessor and the lessee without the consent of the rental business operator, and is subject to criminal punishment or the cancellation or termination of the lease contract. Thus, the consent of the lease business operator is essential in transferring the right of lease or sub-lease. However, even if the transfer of the right of lease or sub-lease is not likely to be abused as a means of pursuing private interests, so that the lease business operator can freely determine the consent of the lease business operator, the right of the lease business operator would be unreasonably restricted, and it may go against the equity by determining whether to allow the transfer or sub-lease of the right of lease by the lease business operator, depending on the who is the lease business operator. Also, if the consent of the lease business operator is entirely voluntary, the legislative intent of allowing the transfer of the right of lease or sub-lease is likely to be lost. Therefore, if the lease business operator falls under any ground prescribed in Article 18(1) of the Rental Housing Act.

④ In addition, Article 3 of the Rental Housing Act provides that the Housing Lease Protection Act shall apply to matters not prescribed under the Rental Housing Act. Even in cases where a lessee allows a third party to use or make profits from a leased object without a separate consent from the lessor, the Housing Lease Protection Act may not terminate the lease on the ground that the sub-lease was made without his/her consent, in special circumstances where the lessee’s act cannot be deemed as an act of good faith against the lessor, and the lessee or the lessee may claim against the lessor the acquisition or sub-lease of the right of lease and the use or profit-making thereof (see, e.g., Supreme Court Decisions 92Da45308, Apr. 27, 1993; 2005Da64255, Nov. 29, 2007). However, Article 18(1) of the Enforcement Decree of the Rental Housing Act does not constitute a reason for the lessee’s transfer or sub-lease of the right of lease.

⑤ Under the Enforcement Decree of the Rental Housing Act, where a lessee intends to transfer or sublease a right of lease as a procedure for the transfer or sublease of a right of lease (Article 18(2)), the Enforcement Decree of the Rental Housing Act provides that a lessee may refuse a lessee’s request for the transfer or sub-lease of a right of lease (Article 18(3)) if there are special circumstances to prevent a lessee from transferring or sub-lease a right of lease contrary to the purport of the Rental Housing Act (Article 18(3)). As such, Article 18 of the Enforcement Decree of the Rental Housing Act guarantees a lessee’s right of lease and guarantees a lessee’s right to refuse a request for the transfer or sub-lease of a right of lease, and thus, it cannot be deemed that excessive restriction on

She Whether transfer of right of lease constitutes exceptional grounds for permit

According to Article 19 of the Rental Housing Act and Article 18 of the Enforcement Decree of the Rental Housing Act, if a lessee of a publicly constructed rental house prohibits, in principle, a lessee of the publicly constructed rental house from transferring or sub-lease the right to lease to another person, and if a lessee submits to a rental business operator materials proving that such lessee falls under exceptional reasons, the rental business operator is obligated to consent to transfer or sub-lease the right to lease unless there are special circumstances. In light of the purport of relevant Acts and subordinate statutes, such as the Rental Housing Act for the purpose of stabilizing the residential life of citizens, exceptional

However, according to the above facts, the Plaintiff left the Republic of Korea for the purpose of studying on February 7, 2012, and was currently residing in Australia and scheduled to graduate on November 21, 2015 from ○○○ University △△△△○○ University that was located in Australia (resident 5 omitted). It is reasonable to view that the Plaintiff constitutes “the case of moving to a foreign country or staying in a foreign country for at least one year” under Article 18(1)1(c) of the Enforcement Decree of the Rental Housing Act.

Then, whether a right of lease can be transferred even if the lease agreement can be terminated

In full view of the following circumstances recognized in light of the purport and text of relevant Acts and subordinate statutes, such as the Rental Housing Act, it is reasonable to deem that the Plaintiff is entitled to transfer the right of lease with the consent of the Defendant without concluding the lease agreement

① The purpose of the Rental Housing Act is to stabilize the residential life of citizens (Article 1) and the Housing Lease Protection Act shall apply to matters not prescribed by this Act concerning the supply and management of rental housing, and Article 10 of the Housing Lease Protection Act provides that “Unless otherwise prescribed by Acts and subordinate statutes, any agreement contrary to this Act and unfavorable to the lessee shall be null and void.” Thus, limiting the lessee’s rights under the Rental Housing Act may not be allowed unless otherwise prescribed by the said Acts and subordinate statutes. Therefore, the Plaintiff is not seeking the termination of a lease agreement, and thus, the said agreement may not be forced against its will.

② Article 19 of the Rental Housing Act and Article 18(1) and (3) of the Enforcement Decree of the Rental Housing Act provide that all members of the household of a lessee of a rental house may transfer the right of lease with the consent of the rental business operator if they fall under a specific reason after moving into the rental house. In addition, Article 19 of the Rental Housing Act and Article 18(1) and (3) of the Enforcement Decree of the Rental Housing Act provide that all members of the lessee of the rental house may transfer the right of lease with the consent of the rental business operator unless there is any special

③ The Plaintiff may transfer the right of lease to another person upon the consent of the Defendant, a rental business operator, in exceptional circumstances, such as employment under the Rental Housing Act and other relevant statutes. Therefore, barring any special circumstance, the Plaintiff’s exercise of the right cannot be said to contravene the purpose and intent of the Rental Housing Act.

Applicant Whether the Plaintiff, who is the lessee, can select the assignee of the right of lease.

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 is entitled to select a transferee when transferring the right of lease.

① In general cases of transfer of the right of lease, the lessee may select the assignee of the right of lease, but it is difficult to find reasons to regard the 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 certain conditions, but do not stipulate that a lessee may select a transferee.

(3) Article 18 (1) 1 of the Enforcement Decree of the Rental Housing Act only provides that in the case of privately constructed rental housing and purchased rental housing, a lessee may be selected at will without limiting the transferee of the right of lease to the members of a homeless household, and in the case of publicly constructed rental housing, it shall not be construed as a provision restricting the right

(v)the subject of the obligation to verify whether the lessee is homeless;

In full view of the following circumstances recognized in light of the purport and language of relevant Acts and subordinate statutes, including the Rental Housing Act, the obligation to verify whether the lessee is a homeless person exists in the leased business operator, and cannot be said to have the obligation to verify whether the transferee is a homeless person when the Plaintiff seeks consent to the transfer of the right

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 materials proving that the lessee falls under any 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 any special circumstance arises to the lessee, such as supporting documents submitted by the lessee to the rental business operator pursuant to paragraph (2).” However, the same does not provide that the transferee shall submit materials proving that the lessee is

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

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

⑹ 소결

Therefore, insofar as there is no evidence that the non-party selected as the lessee of the right of lease is not a homeless person, the defendant is obligated to express his/her consent to transfer the right of lease of the apartment in this case to the non-party.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance shall be modified upon the changed claim in the appellate court, and it is so decided as per Disposition.

[Attachment]

Judges Kim Dae-ro (Presiding Judge)