(a) Whether a lessee who has set a period of less than two years under a lease agreement to which the Housing Lease Protection Act applies can seek the return of the lease deposit on his/her own grounds;

(b) Whether a lease contract cannot be protected under the Housing Lease Protection Act, where it is concluded with a title truster who is not an owner of a house, but has a legitimate right to lease;

A. Article 4(1) of the Housing Lease Protection Act is a provision for the protection of lessees in light of the purport of Article 10 of the same Act. Therefore, since an agreement between the parties in violation of the said provision is not null and void, and even if the agreement violates the said provision, it is reasonable to say that the agreement is null and void, which is not favorable to the lessee, is valid. Thus, the lessee of the lease, whose term is less than two years, may seek the return of

B. The lease subject to the Housing Lease Protection Act is not necessarily limited to the case where a lease contract is concluded between a lessee and a lessor who is the owner of a house, and also includes the case where a lease contract is concluded with a lessor who is not a housing owner but has the authority to lawfully conclude a lease contract on a house.

(a) Article 4(1) and Article 10 of the Housing Lease Protection Act;

Supreme Court Decision 95Da13258 delivered on May 26, 1995 (Gong1995Ha, 2264), 86Meu164 delivered on March 24, 1987 (Gong1987, 708) (Gong1991, 1252)

Plaintiff

Defendant-Appellant (Attorney Cho Jae-tae, Counsel for defendant-appellant)

Seoul High Court Decision 94Na23007 delivered on April 27, 1995

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

We examine the grounds of appeal.

1. On the first ground for appeal

Article 4 (1) of the Housing Lease Protection Act is a provision for the protection of lessees in light of the purport of Article 10 of the same Act. Thus, it is reasonable to say that an agreement by a party in violation of the above provision is not null and void, and even if an agreement violates the above provision is not unfavorable to the lessee, it is valid. Thus, the lessee of the lease who has set the lease term less than 2 years can seek the return of the lease deposit on the ground that the lease term has expired by himself (see Supreme Court Decision 95Da13258 delivered on May 26, 1995). The judgment below is just to the same purport, and there is no error in the misapprehension of legal principles as to the lease term under Article 4 (1) of the Housing Lease Protection Act, such as theory of lawsuit,

2. On the second ground for appeal

(1) On September 16, 192, the court below acknowledged that a lease contract was concluded with the plaintiff on September 16, 192 with respect to the housing of this case where the defendant trusted the name of the owner on the registry with the non-party 1, and accordingly, the plaintiff delivered the lease deposit to the defendant and occupied and used it up to the present time, and that the registration of ownership transfer was completed on November 17, 1993 with respect to the housing of this case, and that the non-party 2, the transferee of the leased house, pursuant to Article 3 (2) of the Housing Lease Protection Act, succeeded to the status of the lessor under the above lease contract, and the defendant was absent from the status of the lessor, the court below rejected the claim that Article 3 (2) of the Housing Lease Protection Act applies only to the case where the plaintiff has the opposing power under Article 3 (1) of the Housing Lease Protection Act, and that the right of lease with the opposing power against the third party under Article 3 (1) of the Housing Lease Protection Act shall be limited to the owner's right of this case.

(2) However, as a lease governed by the Housing Lease Protection Act, it cannot be deemed that a lease contract is limited to the case where a lease contract is concluded between a tenant and a lessor who is the owner of a house, and furthermore, it shall include the case where a lease contract is concluded with a lessor who is not the owner of a house and has the authority to lawfully conclude a lease contract concerning a house. Thus, as determined by the court below, as long as the defendant, who is the lessor under the Housing Lease Protection Act, has the authority to actually lease the house to a third party even though he is not the owner of the house of this case, the plaintiff, the tenant, can assert that the lease is legitimate in relation to the title trustee, who is the owner of the house on the registry, and therefore, if the plaintiff completed the delivery of a house and the resident registration, the plaintiff acquired the opposing power under Article 3

(3) Therefore, the court below determined that the lessee who entered into a lease contract with the title truster of a house could not acquire the opposing power against the third party even when the delivery of the house and the resident registration is completed, and thus, determined that the court below erred by misapprehending the legal principles on opposing power as stipulated in Article 3(1) of the Housing Lease Protection Act. The grounds for appeal

3. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Don-hee (Presiding Justice)