In case where an additional registration under Article 18 of the Rental Housing Act is cancelled, whether a lessee may file a claim against a rental business operator to recover the additional registration prohibited from being cancelled (negative)

Although the Rental Housing Act does not explicitly stipulate the cancellation of additional registration of prohibited matters, Article 3 of the Housing Act and the Housing Lease Protection Act shall apply to the construction, supply and management of rental housing, and in light of the provisions of Article 45 of the Enforcement Decree of the Housing Act according to the delegation of the latter part of Article 40(3) and the latter part of Article 40(4) of the Housing Act, it is interpreted that the additional registration of prohibited matters under the Rental Housing Act is cancelled at a rental business operator's request or cancelled at the court's request.

As above, the additional registration or cancellation of prohibited matters under Article 18 of the Rental Housing Act is conducted by a rental business operator’s sole application or registration officer’s request, or by the court’s commission, and thus it is difficult to regard a lessee and a rental business operator as a person entitled to registration or a person liable for registration under the procedure for registration in relation to the recovery of cancelled matters. However, as a lawsuit for the recovery of cancellation registration is brought against the person liable for registration in order to recover cancelled registration where any registration is wholly or partially cancelled, and the person liable for registration shall file a lawsuit against the person liable for registration to recover the cancelled registration. Therefore, it is unreasonable for a lessee

Articles 3 and 18 of the Rental Housing Act (wholly amended by Act No. 13499, Aug. 28, 2015); Article 40(3) and (4) of the Housing Act; Article 45 of the Enforcement Decree of the Housing Act

Attached 1 List of Plaintiffs (Attorney Jeong-nam, Counsel for the plaintiff-appellant)

LLC et al.

Attached Table 2 is as shown in the List of Participants (Patent Law Firm Number, Attorneys Yang Sung-il et al., Counsel for the defendant-appellant)

Gwangju High Court Decision 2012Na4861 decided April 3, 2013

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. Article 18 (1) of the Rental Housing Act provides that, with respect to rental housing constructed by a housing construction project implemented with approval for a business plan under Article 16 (1) of the Housing Act, a rental business operator shall not establish a real right, such as mortgage or provisional registration, or establish a right of lease on a deposit basis or a right of lease on a deposit basis, or establish a right of lease on a deposit basis. Paragraph (2) of the same Article provides that, with respect to rental housing under paragraph (1) at the same time as an application for registration of ownership preservation, a rental business operator shall file an additional application for the establishment of a limited real right, seizure, provisional seizure, provisional disposition, etc. by not later than the date of conversion of ownership, and Paragraph (3) of the same Article provides that a rental business operator of rental housing on a deposit basis after the completion of registration of ownership preservation shall also file an application for the same registration as Paragraph (2).

In addition, while the Rental Housing Act does not explicitly stipulate the cancellation of additional registration of prohibited matters, Article 3 provides that the Housing Act and the Housing Lease Protection Act shall apply to the construction, supply and management of rental housing. In light of the provisions of Article 45 of the Enforcement Decree of the Housing Act according to the delegation of the latter part of Article 40(3) and the latter part of Article 40(4) of the Housing Act, the additional registration of prohibited matters under the Rental Housing Act shall be interpreted as cancellation by a rental business operator's application or cancellation by a registrar at his/her own authority or at the court's request.

As above, since additional registration or cancellation of prohibited matters under Article 18 of the Rental Housing Act is conducted by a rental business operator’s application or registration officer solely, or by the court’s commission, it is difficult to regard a lessee and a rental business operator as a person entitled to registration or a person obliged to file for registration under the registration procedure with regard to the recovery of cancelled matters. However, in cases where any registration is entirely or partially cancelled, a lawsuit seeking recovery of cancelled matters is filed against a person liable for registration to recover the cancelled registration. As such, it is inappropriate for a lessee who is not a person entitled to registration to file for a claim for recovery of additional registration against a rental business operator, who is not a person liable

2. After compiling the admitted evidence, the lower court recognized the facts as indicated in its holding, and determined that the instant lawsuit against the Plaintiffs’ Intervenor is unlawful, since it is inappropriate to seek restitution of cancellation registration as it could not think of the concept of the person liable for registration in the additional registration procedure for the cancellation and recovery of prohibited matters.

In light of the above legal principles, the above determination by the court below is just, and there is no error of law by misunderstanding the legal principles as to additional registration of prohibited matters, contrary to what is alleged in the grounds of appeal. Supreme Court Decision 2009Du19168 Decided May 13, 2010, which is cited as the grounds of appeal by the plaintiffs, recognized the right to sue to bring a lawsuit against the council of lessees' representatives to revoke the approval of conversion to sale in lots by the administrative agency, and it is not appropriate

In addition, on the grounds indicated in its reasoning, the court below’s determination that the lessee’s claim for recovery from cancellation against the Defendant, who was the owner at the time of cancellation, not the Sung Construction Co., Ltd., but the Defendant, who acquired the right before the cancellation, was unlawful is assumed. As seen earlier, as long as the judgment of the court below is justifiable, the propriety of the above constructive judgment does not affect any conclusion of the judgment.

3. Therefore, all appeals are 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 on the bench.

[Attachment 1] List of Plaintiffs: Omitted

[Attachment 2] List of Participants: Omitted

Justices Park Sang-ok (Presiding Justice)