[1] Whether the requirements for setting up against the Housing Lease Protection Act are recognized even in the case of indirect possession (affirmative)

[2] Whether a lessee acquires the opposing power under the Housing Lease Protection Act in a case where a lessee subleases a leased house with the approval of a lessor and the sub-lessee completes his/her resident registration with the delivery of a house (affirmative)

[3] In special circumstances where a lessee’s act of allowing a third party to use the leased object without the lessor’s consent can not be deemed as an act of distribution against the lessor, whether the lease contract can be terminated solely on the ground that the lessor is a sub-lease without the lessor’s consent (negative)

[4] In a case where the sub-lease of a house is deemed lawful and valid for the lessor, whether the requirements for setting up against the lessee are maintained and still exists by taking over the house and completing his resident registration (affirmative)

[1] The requirements for counterclaim under Article 3 (1) of the Housing Lease Protection Act may be acknowledged not only in cases where a lessee resides in the relevant house and directly occupies it, but also in cases where he/she indirectly occupies it by mediating another person's possession.

[2] Even if a housing lessee does not possess a leased house directly and reside therein, if he subleases the leased house lawfully with the lessor's consent and the lessee completes his resident registration after delivery of the house, it can be sufficiently published that the house is the object of the lease. Thus, the lessee is deemed to legally meet the requirements for counterclaim under the Housing Lease Protection Act.

[3] Even in cases where a lessee allows a third party to use or benefit from the leased object without a separate consent from the lessor, in the event where special circumstances are acknowledged that the act of the lessee cannot be deemed as an act of distribution against the lessor, the lessor cannot terminate the lease on the ground that the sub-lease was made without his/her consent, and the sub-lessee may claim the lessor to use or benefit from the sub-lease or benefit therefrom.

[4] In a case where the sub-lease of a house is assessed to be legitimate and effective for the lessor as well as the party concerned, the fact that if the sub-lessee takes over the house from the lessee and completes his resident registration, it can be sufficiently published that the house becomes the object of the lease. In such a case, there is no other method of public announcement. Thus, the lessee’s requisite for setting up a lease should be deemed lawful, effective, and sustained by the lessee’s direct possession and resident registration of the lessee. This interpretation not only accords with the purpose of the Housing Lease Protection Act, such as the stability of the lessee’s residential life and the securing of the recovery of the lease deposit, but also does not result in any damage to a third party who had already been set up against the original lease or against equity.

[1] Article 3 (1) of the Housing Lease Protection Act, Article 194 of the Civil Act / [2] Article 3 (1) of the Housing Lease Protection Act, Articles 194 and 629 of the Civil Act / [3] Article 629 of the Civil Act / [4] Article 3 (1) of the Housing Lease Protection Act, Articles 194 and 629 of the Civil Act

[1] Supreme Court Decision 200Da55645 delivered on January 19, 2001 (Gong2001Sang, 521) / [2] Supreme Court Decision 87Meu2509 delivered on April 25, 198 (Gong198, 893) Supreme Court Decision 94Da3155 delivered on June 24, 1994 (Gong1994Ha, 2067), Supreme Court Order 94Ma2134 delivered on June 5, 1995 (Gong195Ha, 2490) / [3] Supreme Court Decision 92Da24950 delivered on April 13, 1993 (Gong193, 1979Sang, 1379) / [3] Supreme Court Decision 94Da30539 delivered on April 29, 193

Plaintiff

Korean Bank, Inc.

Changwon District Court Decision 2005Na4981 Decided October 14, 2005

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

The grounds of appeal are examined.

1. The requirements for setting up against a lessee under Article 3(1) of the Housing Lease Protection Act may be acknowledged not only in cases where the lessee occupies the house in question and directly occupies it, but also in cases where the lessee indirectly occupies it by means of other person's possession (see Supreme Court Decisions 2000Da55645, Jan. 19, 201; 200Da55645, Apr. 25, 198; 2005Da645, Jun. 31, 195). Even in cases where the lessee does not directly occupy the leased house and reside therein, if the lessee subleases the leased house lawfully with the lessor's consent and completes the lessee's resident registration after delivery of the house, it can be sufficiently published that the leased house has become the object of the lease. Thus, the lessee is deemed to legally meet the requirements for setting up against the lessee under the above Act (see Supreme Court Decisions 87Meu2509, Apr. 25, 1988; 94Da3154, Jun. 24, 1995).

Meanwhile, in a case where a lessee fails to sub-lease a leased object without a lessor’s consent and the lessee violates it, the lessor may terminate the lease contract (Article 629 of the Civil Act). However, considering that the lease contract is continuous legal relations based on the individual trust of the original party, it is intended to protect the lessor’s personal trust or economic interest and not to harm it. The lessee’s use and profit-making of the leased object to a third party without the lessor’s consent can be an act of good faith that makes it difficult for the lessor to continue the lease relationship. Therefore, even in a case where the lessee allows a third party to use and profit-making from the leased object without the lessor’s separate consent, the lessor cannot terminate the lease contract solely on the ground that the lessee’s act of sub-lease was conducted without the lessor’s consent, and the lessee can claim the lessor to use and profit-making from the sub-lease or the leased object (see Supreme Court Decision 9Da4293, Apr. 29, 193; Supreme Court Decision 2005Da9794, Apr. 29, 1993).

In addition, when it is assessed that the sub-lease of a house is valid not only between the parties concerned but also between a lessor and a lessor, the fact that the sub-lease is the object of the lease can be sufficiently published if the lessee completes his resident registration after the delivery of the house from the lessee, and in such a case, there is no other method of public announcement. Therefore, the lessee's requisite for setting up against the lessee shall continue to maintain the lessee's legitimate possession and resident registration by the lessee. This interpretation not only accords with the purpose of the Housing Lease Protection Act, such as the stability of the lessee's residential life and the securing of the recovery of the lease deposit, but also does not result in any damage to a third party who had already been set up against the original lease or against the principle of equity.

2. After compiling the selected evidence, the court below acknowledged the facts as stated in its reasoning. The plaintiff's assertion on the ground of claim, namely, the plaintiff's assertion on the ground of claim, that the tenant of the apartment of this case can not be deemed as a new act destroying the trust relationship with the landlord, and in this case, the plaintiff's sub-lease cannot be deemed as valid since it cannot be deemed that the tenant of the apartment of this case's sub-leases the apartment of this case, and there was a circumstance that the plaintiff should be a director in the first place due to his living relationship while residing there was no refund of deposit due to the default of the tenant's Housing Construction Co., Ltd. (hereinafter referred to as the "Housing Construction") after the termination of the lease, and the plaintiff did not receive a reply even though he requested the return of deposit. Thus, the plaintiff did not receive an implied consent as to the recovery of the deposit through sub-lease of the apartment of this case. Thus, it is difficult to view that the plaintiff's sub-lease of this case's right to set up against the tenant of this case as a small amount of objection against the Housing Construction Act.

3. However, according to the reasoning of the judgment below and the record, the apartment house of this case is constructed under the Rental Housing Act and is, in principle, prohibited from transferring its right of lease or sub-lease pursuant to Article 13 of the same Act. However, Article 13 of the same Act provides that the lease contract between the plaintiff and the housing construction is permitted if the agreement of the rental business operator is obtained as prescribed by the Presidential Decree. Accordingly, Article 10 (1) 1 (a) of the Enforcement Decree of the Rental Housing Act provides that "where the plaintiff intends to move to another Si/Gun due to work, life, etc." as one of its reasons, housing construction is not in a situation where it is entirely impossible to identify the location or contact of its officers and employees after the expiration of the lease term of the 197 rental house, and the plaintiff could not request the return of the deposit money for the apartment house of this case for 20 years after the expiration of the lease term of the 197 rental house."

Examining these circumstances in light of the legal principles as seen earlier, it is sufficient to view that the sub-lease of this case by the Plaintiff constitutes a case where there is a special circumstance where it substantially infringes on the personal trust or economic interest of the housing construction, which is a lessor, or destroys the trust relationship with him. If so, the housing construction as a lessor cannot terminate the lease contract on the ground that the sub-lease was sub-leaseed without his consent, and the non-party, a sub-lessee, can assert the above sub-lease or the use and profit-making of the sub-lease, and thus, the sub-lease of this case is legitimate not only between the parties but also between the lessor and the lessor, and in this case, the counter-party, a lessee, may continue to maintain the legitimate and effective requisite of the plaintiff, a lessee, by completing the resident registration after delivery of the apartment of this case.

Nevertheless, the court below did not examine and decide whether the Plaintiff’s act of sub-lease in this case cannot be deemed as a acts of credit against a lessor, and in this case, it can be deemed as a existence of the requisite for setting up against a lessor as well as the case of sub-lease lawfully given a lessor’s consent, and dismissed Plaintiff’s claim of objection against a non-party to this case merely on the ground that the Plaintiff did not obtain consent from the housing construction of a lessor at the time of sub-lease. This judgment of the court below is erroneous in the misapprehension of legal principles as to the requirements for setting up against a small lessee’s right to preferential reimbursement under the Housing Lease Protection Act, or failing to exhaust all necessary deliberations, which affected

4. Therefore, 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 Shin Hyun-chul (Presiding Justice)