[1] Whether a spouse's or his/her child's resident registration is included in the requirements for counterclaim under the Housing Lease Protection Act

[2] Whether the opposing power is lost in a case where a lessee of a house, who has completed the occupancy and resident registration, moves only the lessee to another location temporarily without having the resident registration as it is

[1] Requirements for setting up a resident registration under Article 3(1) of the Housing Lease Protection Act include not only the tenant himself/herself but also his/her spouse and children, etc.

[2] If a lessee continues to occupy the house with his family members and only the lessee moves his/her resident registration to another place temporarily without having his/her family's resident registration, then the lessee cannot be deemed as a secession of resident registration as a whole or ultimately, as long as he/she cannot be deemed as a secession of resident registration, the lessee's opposing power against the third party cannot be lost.

[1] Article 3 (1) of the Housing Lease Protection Act / [2] Article 3 (1) of the Housing Lease Protection Act

[1] [2] Supreme Court Order 88Meu143 dated January 17, 1989 (Gong1989, 295) / [1] Supreme Court Decision 87Meu14 Decided October 26, 1987 (Gong1987, 1779) decided June 14, 1988 (Gong1988, 1029), Supreme Court Order 94Ma2134 dated June 5, 1995 (Gong195Ha, 2490) / [2] Supreme Court Decision 86Meu1695 Decided February 24, 1987 (Gong1987, 524)

New Mutual Savings Bank

Defendant

Seoul High Court Decision 95Na1912 delivered on May 25, 1995

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

The grounds of appeal are examined.

According to the reasoning of the judgment below, the court below acknowledged, based on its evidence, that upon the plaintiff's application for commencement of voluntary auction as a mortgagee for the leased house of this case, the Seoul District Court decided to commence voluntary auction on January 8, 1993, and the record registration was made on February 12, 199, and the defendant occupied the leased house of this case on or around February 17, 1992 by leasing one room among the first floor of the leased house of this case from non-party 1 and taking over the leased house at around that time, but the moving-in report was completed only on October 25, 1993, which was after the registration of the entry of the above decision on commencement of voluntary auction, and determined that since the defendant did not complete the resident registration at the domicile of the leased house of this case before the entry of the decision on commencement of auction was completed, it cannot be deemed that it constitutes a small lessee under Article 8 of the Housing Lease Protection Act, and thus, it cannot receive the small amount deposit in preference to the plaintiff.

However, the requirements for setting up a resident registration under Article 3 (1) of the Housing Lease Protection Act include not only the tenant but also his/her spouse or child, etc. (see Supreme Court Order 94Ma2134, Jun. 5, 1995). In addition, in cases where the tenant continues to occupy the house together with his/her family and the tenant moves his/her resident registration to another place at a time without having his/her family's resident registration as a whole or ultimately, he/she shall not lose the opposing power against the third party of the lease as long as it cannot be deemed as the escape of resident registration as a whole (see Supreme Court Order 88Meu143, Jan. 17, 1989).

However, according to the records in Eul's evidence Nos. 3-1, 2, and 3 (Abstract of each resident registration card) which the court below rejected, the defendant filed a resident registration report in the leased house's domicile as of February 17, 1992 with the non-party 2, who is his own child, and the non-party 3, his mother, completed the resident registration report as of March 16 of the same year. The defendant left his resident registration as of April 1, 1993, and again moved again into the leased house's domicile on October 25 of the same year. However, although the above non-party 2 and the non-party 3 continued to move into the above leased house's domicile without changing the above resident registration address, it cannot be concluded that the defendant did not have any opposing power as stipulated in Article 3 of the Housing Lease Protection Act, and therefore, the court below erred in the misapprehension of the legal principles as to the plaintiff's remaining grounds for appeal.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all Justices.

Justices Park Jong-ho (Presiding Justice)