[1] Where a lease contract is implicitly renewed pursuant to Article 6(1) and (2) of the Housing Lease Protection Act with respect to private rental housing subject to the former Special Act on Private Rental Housing, whether the lease term becomes two years (affirmative in principle)

[2] Whether a creditor who exercises a creditor's subrogation right can assert a reason based on an independent circumstance between himself/herself and a third party debtor (negative)

[3] The case holding that in case where Eul corporation, the pledgee of the right to claim the repayment of the lease deposit of an apartment lease agreement entered into between Gap and the Korea Land and Housing Corporation, asserted that the above lease agreement was terminated at the expiration of the term without renewal, and sought the transfer of the apartment against Eul by subrogation of the Korea Land and Housing Corporation, the case holding that the Korea Land and Housing Corporation cannot be deemed as a rejection of renewal of the above lease agreement in light of all the circumstances, including the case where the Korea Land and Housing Corporation did not express its intention to refuse the renewal of the lease agreement against the tenant Gap, and it cannot be viewed as a different agreement of the contract of lease contract

[1] Articles 3, 45, and 47(1) of the former Special Act on Private Rental Housing (amended by Act No. 15730, Aug. 14, 2018; hereinafter “Private Rental Housing Act”); Article 35 Subparag. 6 of the former Enforcement Decree of the Special Act on Private Rental Housing (amended by Presidential Decree No. 29045, Jul. 16, 2018; hereinafter “Enforcement Decree of the Private Rental Housing Act”); Article 20(1)1 of the former Enforcement Rule of the Special Act on Private Rental Housing (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 601, Feb. 27, 2019); Article 2 [Attachment Form 25] of the Housing Lease Protection Act (amended by Act No. 17363, Jun. 9, 202) shall not be deemed to be a lessor’s refusal to renew a lease agreement to the extent that the lessor’s refusal to renew the lease agreement may not necessarily be subject to renewal of the lease agreement.

[2] Since the obligee's subrogation right exercises the obligee's right against the third obligor, the third obligor may oppose the obligee with all defenses that the obligor has against the obligor, but the obligee is only able to oppose the obligee within the scope of the grounds that the obligor himself/herself can assert, and it is not possible to assert the grounds based on the independent circumstances between himself/herself and the third obligor.

[3] The case holding that in case where Eul corporation, a neighboring pledgee of the claim for the repayment of the lease deposit of an apartment lease agreement entered into between Gap and the Korea Land and Housing Corporation, asserted that the lease contract was terminated at the expiration of the term without renewal, and sought the delivery of the apartment against Eul by subrogation of the Korea Land and Housing Corporation, the Korea Land and Housing Corporation did not express its intention to refuse the renewal of the lease agreement against the tenant Gap, and the Korea Land and Housing Corporation requested Gap to pay the increased deposit on the premise that the lease agreement still remains in existence due to renewal of the lease agreement, and Gap already completed the implementation of the lease agreement, the Korea Land and Housing Corporation can no longer assert the rejection of renewal of the lease agreement as a lessor, and the Korea Land and Housing Corporation also cannot claim the delivery of the apartment by subrogation of the Korea Land and Housing Corporation on the premise that the lease agreement was terminated at the expiration of the term of the term of the lease agreement, and thus, it cannot be viewed that the lessee would not be subject to any changes in the legal principles as to the lease deposit agreement itself, and that the lessee could not be subject to any other fundamental interests.

[1] Article 3, Article 45 (see current Article 45 (1)), Article 47 (1) of the former Special Act on Private Rental Housing (Amended by Act No. 15730, Aug. 14, 2018); Article 35 subparagraph 6 of the former Enforcement Decree of the Special Act on Private Rental Housing (Amended by Presidential Decree No. 29045, Jul. 16, 2018; Article 35 (1) 6 of the current Act); Article 20 (1) 1 of the former Enforcement Rule of the Special Act on Private Rental Housing (Amended by Presidential Decree No. 601, Feb. 27, 2019; Article 20 (1) 4 of the former Enforcement Decree of the Housing Lease Protection Act (Amended by Act No. 15730, Feb. 14, 201); Article 40 (2) of the former Enforcement Decree of the Housing Lease Protection Act (Amended by Act No. 15730, Apr. 1, 2017) / [Attachment 25] Article 20 (Attachment 4)

[1] Supreme Court Decision 2020Da202371 Decided May 28, 2020 (Gong2020Ha, 1252) / [2] Supreme Court Decision 2009Da4787 Decided May 28, 2009 (Gong2009Ha, 1013)

Bar Card Co., Ltd.

Defendant

Seoul Central District Court Decision 2019Na32919 Decided February 7, 2020

The part of the lower judgment regarding the claim for extradition of real estate is reversed, and that part of the case is remanded to the Seoul Central District Court. The remaining appeals are dismissed.

The grounds of appeal are examined.

1. Part on a claim for delivery of the apartment of this case

A. Even if the instant lease agreement was renewed after January 31, 2018, the lower court concluded that it cannot be asserted against the Plaintiff pursuant to Article 3 subparag. 10 of the instant lease agreement, and thus, the instant lease agreement terminated at the expiration of the period on January 31, 2018. In so doing, the Plaintiff, as a pledgee regarding the claim for return of the lease deposit under the instant lease agreement, may directly claim the said claim against the Korea Land and Housing Corporation, a lessor, the lessor, as a lessee of the claim for return of the lease deposit, and thus, accepted the claim for delivery of the instant apartment in subrogation of the Korea Land and Housing Corporation

B. 1) However, the lower court’s determination on the premise that the instant lease contract was terminated on January 31, 2018 is difficult to accept for the following reasons.

2) Article 3 of the former Special Act on Private Rental Housing (amended by Act No. 15730, Aug. 14, 2018; hereinafter “Private Rental Housing Act”) provides that the Housing Lease Protection Act shall apply to matters not prescribed in the Private Rental Housing Act concerning the construction, supply, and management of private rental housing. The main sentence of Article 4(1) of the Housing Lease Protection Act provides that the term of lease shall not be determined, or a term of less than two years shall be deemed two years; Article 6(1) and (2) of the same Act provides that a lessor fails to notify a lessee of the refusal to renew the term of lease within six months from six months to one month before the expiration of the term of lease, and that the term of lease shall be deemed two years if the lessor fails to notify the lessee of the refusal to renew the term of lease without any change in the terms and conditions of the lease.

In addition, Article 45 of the Private Rental Housing Act provides that a rental business operator may cancel or terminate a lease agreement, or refuse to renew the lease agreement even during the mandatory rental period, if any ground prescribed by Presidential Decree arises, such as where a lessee violates or is difficult to continue lease. Article 35 of the former Enforcement Decree of the Special Act on Private Rental Housing (amended by Presidential Decree No. 29045, Jul. 16, 2018; hereinafter “Enforcement Decree of the Private Rental Housing Act”) upon delegation by such Act provides that a lessee may cancel or terminate a lease agreement, or refuse to renew the lease agreement even during the mandatory rental period pursuant to Article 45 of the Private Rental Housing Act. However, Article 47(1) of the Enforcement Decree of the Private Rental Housing Act provides that “Where a rental business operator intends to enter into a lease agreement on private rental housing, he/she may cancel or terminate the lease agreement or refuse to renew the lease agreement even during the standard rental period pursuant to Article 45 of the former Enforcement Decree of the Private Rental Housing Act.” Article 47(2)5) of the former Enforcement Decree of the Private Rental Housing Act provides that a lessee may cancel or terminate a rental agreement under Article 20(1).

The aforementioned provisions are intended to restrict a lessor from cancelling or cancelling, or refusing to renew, a lease agreement on private rental housing in order to ensure the stability of the lessee’s residential life. In light of the legislative purpose and purpose of the Act, a lessor ought to be deemed a mandatory provision excluding judicial validity of an agreement in violation of the aforementioned provisions. Therefore, barring any special circumstance, such as where a lease agreement is implicitly renewed pursuant to Article 6(1) and (2) of the Housing Lease Protection Act, the term of lease should be two years, barring any special circumstance, such as the agreement to separately fix the term of lease at least two years. Furthermore, a lessor may not cancel or terminate such lease agreement, or refuse to renew such lease agreement, unless there is any reason falling under any of the subparagraphs of Article 35 of the Enforcement Decree of the Private Rental Housing Act or any of the relevant provisions regarding the refusal to renew a lease agreement, barring any special circumstance, even if the lessee wishes to renew the lease agreement (see Supreme Court Decision 200Da2371, May 28, 2020).

3) According to the reasoning of the lower judgment and the record, the Korea Land and Housing Corporation requested the Defendant to pay the increased deposit and enter into a contract to renew the instant lease agreement by January 31, 2018, and the Defendant had the intention to renew the lease agreement under the condition of the increase of deposit at the time. The Defendant also paid the amount of rent to the Korea Land and Housing Corporation for the remainder of the period after January 31, 2018. The Defendant began to pay the unpaid increased deposit and management expenses at around 2034,200 won and transferred KRW 191,720 to the Korea Land and Housing Corporation on March 29, 2019, including the commencement of payment of the unpaid increased deposit and management expenses at around 2034,200 and KRW 191,720 as of April 10, 2019, which is the date of closing the argument of the first instance court of this case, and the Defendant is able to know the fact that the apartment contract was extended from 2010 to 30.28.1.28.

According to the above facts, the Korea Land and Housing Corporation did not express its intent to refuse the renewal of the instant lease agreement by presenting the grounds arising from each of the relevant provisions of Article 35 of the Enforcement Decree of the Private Rental Housing Act or the standard rental agreement regarding the refusal to renew the lease agreement, etc. by the date of the closing of argument in the lower court. Rather, the instant lease agreement was renewed on February 1, 2018, and requested the Defendant to pay an increase deposit, etc. on the premise that it still remains in existence, and the Defendant has already completed the implementation upon such request. Therefore, it is reasonable to deem that the Korea Land and Housing Corporation as a lessor is no longer able to assert the refusal to renew the instant lease agreement, which was anticipated to be terminated on January 31, 2018.

In addition, since the obligee's subrogation right exercises the obligee's right against the third obligor, the third obligor may oppose the obligee with all defenses against the obligor. However, the obligee can only assert the obligee within the extent of his/her own defense, and cannot assert any independent circumstance between himself/herself and the third obligor (see Supreme Court Decision 2009Da4787, May 28, 2009). It is noted as above that the rejection of renewal of the lease contract of this case cannot be seen as being made. This is also the Plaintiff seeking delivery of the apartment of this case by subrogation of the Korea Land and Housing Corporation on the premise that the lease contract of this case is terminated at the expiration of the term. This is also the same in relation to the Plaintiff seeking delivery of the apartment of this case by subrogation of the Korea Land and Housing Corporation on the premise that the lease contract of this case is terminated at the expiration of the term. In other words, Article 3(10) of the Korea Land and Housing Corporation contract of this case, which is an independent circumstance between the Plaintiff and the Defendant, which provides that the obligee's prior consent is not extended or renewed.

4) Nevertheless, solely on the grounds indicated in its reasoning, the lower court cited a request for extradition of the instant apartment on the ground that the instant lease agreement was terminated on January 31, 2018 without being renewed and that the period expired. In so doing, the lower court erred by failing to exhaust all necessary deliberations, exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the renewal of a lease agreement on private rental housing

2. Part on the claim for loans of this case

Although the Defendant appealed to the entire judgment of the court below, it does not state specific grounds for objection in the petition of appeal and the statement of grounds for appeal.

3. Conclusion

Therefore, the part of the judgment of the court below regarding the claim for extradition of real estate is reversed, and that part of the case is remanded to the court below for a new trial and determination. The defendant's remaining appeal is dismissed. It is so decided as per Disposition by the assent

Justices Kim Jae-hyung (Presiding Justice)