Whether the duty to return the lease deposit of a lessor and the duty to cancel the lease registration under Article 3-3 of the Housing Lease Protection Act are concurrently performed (negative)

Since the lease registration under the provisions of Article 3-3 of the Housing Lease Protection Act has been made without returning the deposit even after the lease contract was already terminated, it is not interpreted that the lessor has the duty to return the lease deposit of the lessor, which was virtually delayed, and to cancel the lease registration, to preserve the lessee's right corresponding thereto. In particular, the above lease registration is mainly for the purpose of maintaining the lessee's opposing power or right to preferential payment. In light of the above, the obligation to return the lease deposit of the lessor is the obligation to fulfill first, rather than the obligation to cancel the lease registration of the lessee.

Articles 3 (1), 3-3, and 3-5 of the Housing Lease Protection Act, Article 536 of the Civil Act

Seoul Guarantee Insurance Co., Ltd. (Attorney Choi Han-chul, Counsel for defendant-appellant)

Defendant

Suwon District Court Decision 2004Na2066 delivered on December 22, 2004

The appeal is dismissed. The costs of appeal are assessed against the defendant.

Article 3-3 of the Housing Lease Protection Act provides that a lessee who has failed to receive the deposit after the termination of the lease contract may freely move from the leased house or move his resident registration without losing the opposing power and preferential right as prescribed by the Housing Lease Protection Act. Thus, Article 3-3 of the Housing Lease Protection Act provides that the lessee who has failed to receive the deposit after the termination of the lease contract may apply for the order of lease registration to the court. If the lease registration is made by the execution of the order of lease, not only the lessee shall acquire the opposing power and preferential right as prescribed by the same Act, but also the opposing power and preferential right shall not be lost if the lessee has already acquired the right of lease or preferential right of lease before the registration of the right of lease. Since the registration of the right of lease is completed after the registration of the right of lease, the obligation to return the deposit already acquired or preferential right of lease shall not be deemed to have been cancelled even if the lessor fails to meet the requirements for opposing the right of lease under Article 3(1) of the same Act. Therefore, since the registration of the right of lease under the above has already been returned even after the lease was completed, it should be interpreted to preserve the obligation to return the right of lease.

According to the reasoning of the judgment below, the non-party leased the building of this case at KRW 28 million to the non-party and filed a move-in report on resident registration on November 16, 1994; the non-party filed an application for lease registration pursuant to Article 3-3 of the Housing Lease Protection Act after the lease contract is terminated; the non-party sought the return of lease deposit with the owner of the building of this case after the lease registration was completed on October 13, 1999; the plaintiff paid the above KRW 28 million to the non-party according to the insurance contract as the owner of the housing of this case did not pay the lease deposit; the non-party was awarded the voluntary auction of the building of this case; the non-party was awarded a successful bid in the distribution procedure; the non-party's obligation to pay the lease deposit and the non-party's right to claim for repayment of the lease deposit under the provisions of Article 3-5 of the Housing Lease Protection Act; and the court below's determination that the non-party's obligation to pay the lease deposit and the non-party's right to claim for repayment.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Hyun-chul (Presiding Justice)