[1] In a case where a foreigner or a foreign nationality Korean has filed a foreigner registration, a report on the change of his/her place of residence, or a report on the change of his/her domestic domicile or residence pursuant to the former Immigration Control Act or the Act on the Immigration and Legal Status of Overseas Koreans, whether Article 3(1) of the Housing Lease Protection Act recognizes the same legal effect as that of a resident registration

[2] Whether resident registration is included in resident registration of a tenant's spouse or child or other family member, which is a requirement for acquiring opposing power under Article 3 (1) of the Housing Lease Protection Act (affirmative), and whether such a legal principle applies likewise to cases where a Korean national residing abroad under the former Act on the Immigration and Legal Status of Overseas Koreans is a tenant (affirmative)

[1] As to a foreigner or a foreign nationality Korean under the former Immigration Control Act (amended by Act No. 10282, May 14, 2010) or the former Act on the Immigration and Legal Status of Overseas Koreans (amended by Act No. 8896, Mar. 14, 2008), a report on the change of his/her place of stay, or a report on the change of his/her place of residence, or a report on the change of his/her place of residence, is recognized as having the same legal effect as that of a resident registration that provides as the requirement to acquire opposing power under Article 3(1) of the Housing Lease Protection Act. This cannot be viewed differently because the foreigner registration or the domestic place of residence, etc

[2] The resident registration, which is the requirement for acquiring opposing power under Article 3(1) of the Housing Lease Protection Act, includes not only the tenant himself/herself but also his/her spouse and children, etc. This legal doctrine likewise applies to cases where a Korean national residing abroad under the former Act on the Immigration and Legal Status of Overseas Koreans (amended by Act No. 8896, Mar. 14, 2008) is a tenant. Until a Korean national residing abroad is able to make his/her resident registration under the amended Resident Registration Act, which took effect on January 22, 2015, he/she cannot make a resident registration, and it is also impossible to obtain opposing power under the former Immigration Control Act (amended by Act No. 10282, May 14, 2010), because a Korean national residing abroad entered into a lease agreement and a foreign nationality Korean national living together with a foreign national, entered into a lease agreement, a foreign nationality agreement, or a foreign nationality Korean voluntarily and there is no legal reason to protect him/her.

[1] Articles 2(2) and 6(2) of the Constitution of the Republic of Korea; Articles 3(1) and 3-6 of the Housing Lease Protection Act; Article 4(1) of the Enforcement Decree of the Housing Lease Protection Act; Articles 31(1), 32 subparag. 4, 36(1), and 88-2(2) of the former Immigration Control Act (Amended by Act No. 10282, May 14, 2010); Articles 2 and 10 of the former Act on the Immigration and Legal Status of Overseas Koreans (Amended by Act No. 8896, Mar. 14, 2008); Articles 6(1)3 and 3-6 of the Housing Lease Protection Act; Article 3(1) of the Housing Lease Protection Act; Article 4(1) of the former Enforcement Decree of the Housing Lease Protection Act; Article 31(1) of the former Immigration Control Act (Amended by Act No. 10281, Feb. 28, 2010>

[2] Supreme Court Decision 95Da3038 delivered on January 26, 1996 (Gong1996Sang, 745)

Plaintiff (Counterclaim Defendant) (Law Firm Tae & Yang LLC, Attorneys Gyeong-ho et al., Counsel for the plaintiff-Counterclaim Defendant)

Defendant-Counterclaim Plaintiff (Law Firm LLC, Attorneys Yoon Yong-op et al., Counsel for the defendant-Counterclaim plaintiff-appellant)

Seoul High Court Decision 2013Na2027716, 2027723 decided July 8, 2014

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. According to the reasoning of the lower judgment, the lower court: (a) on June 12, 2007, leased the instant apartment from Nonparty 1, who is a Korean national residing abroad who acquired a permanent residence in the Republic of Korea (hereinafter “Defendant”), with the lease deposit of KRW 330 million; and (b) on July 4, 2007, the Defendant obtained a fixed date on the lease contract; (c) on July 4, 2007, upon the delivery of the instant apartment, the Defendant filed a report on the moving of the place of residence into his residence; and (c) on July 19, 2007, Nonparty 2 and Nonparty 3, who was a foreign national Korean national residing in the Republic of Korea, were residing in the instant apartment; and (d) on July 19, 2007, the Plaintiff (the Plaintiff; hereinafter “Plaintiff”) was residing in the instant apartment with the Defendant’s domestic domicile, and had completed the registration of ownership transfer from the Seoul Central District Court’s auction procedure to the end of 201519, etc.

Furthermore, the lower court determined that the Defendant failed to obtain opposing power under the Housing Lease Protection Act, on the grounds that the domestic domicile report of a foreign nationality Korean does not have a publication function such as resident registration in the domestic domicile report of a foreign nationality Korean, and the domestic domicile report of a foreign nationality Korean residing in a foreign nationality Korean who is a lessee cannot be deemed as a resident registration, which is the requirement for opposing power

2. However, we cannot accept the above judgment of the court below as it is.

1) First of all, a report on domestic domicile or change of residence by a foreign nationality Korean shall be deemed to have the legal effect equivalent to that of a resident registration under the Housing Lease Protection Act for the following reasons.

① The former Immigration Control Act (amended by Act No. 10282, May 14, 2010; hereinafter “Immigration Control Act”) provides that a foreigner shall file a foreigner registration with the head of the Immigration Control Office, etc. having jurisdiction over his/her place of stay in the Republic of Korea within 90 days from his/her entry when he/she stays in the Republic of Korea in excess of 90 days from his/her entry (Articles 31(1) and 32 subparag. 4). When he/she changes his/her place of stay, he/she shall file a report on the change within 14 days (Article 36(1)). The foregoing report on the foreigner registration and the change of his/her place of stay shall replace the resident registration and the move-in report (Article

In addition, the former Act on the Immigration and Legal Status of Overseas Koreans (amended by Act No. 8896, Mar. 14, 2008; hereinafter "the Act on Overseas Koreans") means a national of the Republic of Korea who has acquired a permanent residence in a foreign country or resides in a foreign country for the purpose of permanent residence, and a foreign nationality Korean means a person prescribed by the Presidential Decree from among a person who has held a nationality of the Republic of Korea or his/her lineal descendant and has acquired a foreign nationality (Article 2), and a foreign nationality Korean who has entered the Republic of Korea as an overseas Korean as an overseas Korean shall be deemed to have reported a foreigner registration and a change of his/her residence under the Immigration Control Act if he/she reported a domestic domicile and a change of his

As can be seen, if the Immigration Control Act and the Overseas Koreans Act report the domestic place of residence and the moving-in report under the Resident Registration Act are deemed to have been made by a foreign nationality Korean, the purpose of the Immigration Control Act is to provide legal protection equivalent to that of the resident registration if the domestic place of residence and the moving-in report are made instead of being unable to make the resident registration under the Resident Registration Act. In particular, it is directly effective in giving the effect of giving the lessee who completed the delivery of a house and the moving-in report under the Housing Lease Protection Act.

(2) The method of public announcement by which a third party can recognize the existence of a lease in order to ensure the transaction safety is limited to the effect of a foreigner registration under the Immigration Control Act, a report on the change of his/her place of stay under the Immigration Control Act, and a report on the domestic place of residence and a report on the change of residence under the Overseas Koreans Act, compared with that of a resident registration under the Resident Registration Act. However, even in the case of a resident registration, perusal or issuance of a certified copy or abstract is allowed only to the person himself/herself, his/her household members, or a person with a legitimate interest, and the function of

Meanwhile, the Housing Lease Protection Act (amended by Act No. 12043, Aug. 13, 2013; enacted from Jan. 1, 2014; the Housing Lease Protection Act (hereinafter referred to as the “Housing Lease Protection Act”) imposes an obligation to prepare a fixed date book stating the date of granting a fixed date, rent, deposit, lease term, etc. with an agency granting the fixed date of the housing lease agreement, and a person who has an interest in the housing lease is entitled to request the agency granting the fixed date to provide the above lease information, and includes a foreigner (including a foreign national Korean) as well as the person entitled to obtain the fixed date (Article 3-6). This is intended to reinforce the limited public disclosure function of the resident registration and the foreigner registration register, and the effect of the lease agreement by the fixed date book has no difference between the national and the foreigner. This system is newly introduced after the conclusion of the Defendant’s instant lease agreement, but it is not deemed that the method of public announcement on the lease agreement concluded by a foreigner was established only by the foreigner, but can be deemed to have its effect as a foreigner registration and the change report of residence.

③ Article 2(2) of the Constitution provides that the State shall have the duty to protect overseas Koreans under the conditions as prescribed by Act. Such constitutional spirit may also be realized even in cases where the family members of overseas Korean are foreigners or foreign nationality Koreans. In addition, Article 6(2) of the Constitution prohibits discrimination against foreigners by prescribing that their status is guaranteed in accordance with international law and treaties. In particular, the necessity for stability of residence and protection is inherently equal. Therefore, when interpreting and applying the regulations and legal principles on legal relations related to the residence of foreigners and foreign nationality Koreans, such constitutional ideology should be realized as far as possible.

④ Considering the above various points, the legal effect of a foreigner or a foreign nationality Korean with respect to a foreigner registration, a report on the change of his/her place of stay, or a report on the change of domestic place of residence or a report on the change of residence in accordance with the Immigration Control Act or the Overseas Koreans Act ought to be recognized as having the same legal effect as that of a resident registration prescribed by Article 3(1) of the Housing Lease Protection Act as the requirement to acquire the opposing power of a housing lease. This cannot be deemed as

2) In addition, the requirements for acquiring opposing power 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. (see Supreme Court Decision 95Da30338, Jan. 26, 1996, etc.). Such a legal doctrine ought to be equally applied to cases where a Korean national residing abroad under the Overseas Koreans Act is a tenant under the amended Resident Registration Act, effective January 22, 2015. Considering that a Korean national residing abroad is unable to obtain opposing power under the Housing Lease Protection Act as he/she is neither a foreigner nor a foreigner, etc. under the Immigration Control Act, and there is no need to obtain opposing power under the Housing Lease Protection Act because a Korean national residing abroad is a foreigner under a lease agreement and a foreign nationality Korean resident or a foreign nationality Korean living together with a foreign nationality Korean national under the Housing Lease Protection Act, and there is no legal difference between cases where a lease agreement is concluded and a domestic domicile report, etc. is made by himself/herself.

3) Examining the above facts in light of the aforementioned legal principles, the domestic residence report of the defendant's living together who is a foreign national Korean residing together with the defendant's living abroad, whose spouse and his father are the apartment house of this case pursuant to the Housing Lease Protection Act shall be deemed to have the same legal effect as the resident registration, which is the requirement for opposing power under the Housing Lease Protection Act. Therefore, the defendant to whom the apartment of this case was delivered, as the above domestic domicile report of his spouse and his father, obtained the opposing power as stipulated in Article 3 (1) of the Housing Lease Protection Act as to the apartment

Nevertheless, the lower court determined that the Defendant did not acquire opposing power under the Housing Lease Protection Act. In so doing, the lower court erred by misapprehending the legal doctrine on the validity of domestic residence report by foreign nationality Koreans under the Overseas Koreans Act, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, without examining the remaining grounds of appeal by the Defendant, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)