Where a lessee who has an opposing power under the Housing Lease Protection Act by concluding a lease contract on a house has made a registration for the establishment of a right to lease on a deposit basis after the lease contract, whether he/she loses the opposing power by the execution

On April 24, 1986, when Gap filed a move-in report and resided in Eul as a Housing owner, and sold his house to Eul, on November 27, 1990, after entering into a lease contract with Eul on the first floor and continued to reside in Eul on July 6, 1991, Eul created a right to collateral security to Byung on April 13, 191, Byung's voluntary auction application was made on December 19, 191, and Eul formed a right to collateral security on December 19, 191. The reason why Eul registered the right to collateral security, which was the opposing power of tenant under the Housing Lease Protection Act, but was aimed at strengthening his status. Thus, even if the registration of the right to collateral security was cancelled due to a successful bid in accordance with the enforcement of the prior right to collateral security, it does not lose Gap's opposing power under Article 12 and Article 3 (1) of the Housing Lease Protection Act by entering into a lease contract with the building owner prior to the registration of the right to collateral security.

Articles 3 and 12 of the Housing Lease Protection Act

Plaintiff (Counterclaim Defendant)

Defendant-Counterclaim Plaintiff (Attorney Kim Jong-soo, Counsel for the defendant-Counterclaim plaintiff-appellant)

Chuncheon District Court Decision 92Na3162, 92Na3179 (Counterclaim) Decided January 8, 1993

The judgment of the court below is reversed, and the case is remanded to Chuncheon District Court Panel Division.

Defendant-Counterclaim Plaintiff (hereinafter “Defendant-Counterclaim Plaintiff”)’s ground of appeal is examined.

1. According to the reasoning of the judgment below, the court below reasoned that the plaintiff (the counter defendant, the plaintiff et al.) concluded the above right to lease on the 10th anniversary of the successful bid and completed the registration of ownership transfer, the defendant is obligated to order the plaintiff to occupy the above right to lease on the 1st floor unless he proves his right to lease, and the defendant entered into a lease agreement with the non-party 1 who was the owner of the right to lease on the 1st floor and completed the necessary conditions under the Housing Lease Protection Act, and thus, the defendant cannot respond to the plaintiff's counterclaim and the plaintiff's counterclaim 90th of the above right to lease on the 19th of the above 0th of the lease on the 9th of the lease on the 196th of the lease on the 190th of the lease on the 1st of the above 9th of the lease on the 196th of the lease on the 10th of the lease on the 190th of the above 10th of the lease on the 1010th of the above.

2. However, according to the above facts of the court below's finding, the defendant concluded a lease contract between the non-party 1 who purchased the building of this case on November 27, 1990 on the first floor of this case with the right to lease on a deposit basis for a period of 30,00,000, and one year prior to the transfer of a resident registration of this case on April 24, 1986. Thus, the defendant is in a position to oppose a third party pursuant to Article 3 (1) and Article 12 of the Housing Lease Protection Act. According to Gap's evidence 1, it is hard to find that the right to lease was registered under the name of the non-party 1, which was 7 months prior to the execution of the above establishment registration of a right to lease on a deposit basis. The defendant's assertion that the establishment of a lease on a deposit basis of this case was already registered under the name of the non-party 1, which was not the first-party 1, but is not clear that it had been registered under the name of the plaintiff 2.

In addition, the purpose of legislation of the Housing Lease Protection Act enacted to ensure the stability of the residential life of the people is that Article 12 (Application Mutatis Mutandis of the Housing Lease Protection Act) of the said Act (Application Mutatis Mutandis of the unregistered Lease Protection Act) is to extend the application of this Act to a pre-paid lease contract that has not been registered, and in this case, even an occupant who has opposing power under the Housing Lease Protection Act by entering into a lease contract with a building owner and making a resident registration, even if he/she has the right of lease under the Housing Lease Protection Act, he/she shall not be excluded from the object of protection of the said Act.

Therefore, the court below should have deliberated more on the grounds that the defendant had made a registration of the establishment of a right to lease on a deposit basis with Nonparty 1 on November 27, 1991, and on the first floor of the instant first floor, only the lease contract and the report of resident registration with Nonparty 1 on November 27, 1991, and then the details of the agreement with the above Nonparty 1, who is the building owner, at that time. However, the court below did not reach this point and rejected the defendant's defense and counterclaim as to the main lawsuit on the grounds stated in its reasoning, which affected the conclusion of the judgment by failing to exhaust all necessary deliberations, or by misapprehending the legal principles of the Housing Lease Protection Act, which points out this point.

3. Therefore, we reverse and remand the judgment of the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ansan-man (Presiding Justice)