In a case where a Korean national Gap who was a foreign national Korean after renting an apartment, Eul and his/her father after having reported his/her domestic place of residence jointly with his/her husband, and claimed opposing power under the Housing Lease Protection Act against a defect in claiming delivery of a building during a voluntary auction procedure, the case holding that Gap did not obtain opposing power under the Housing Lease Protection Act due to his/her own, his/her family members Eul and Byung

In a case where: (a) a Korean national residing abroad who was a foreign national Korean after leasing an apartment; and (b) a Korean national residing together with his/her report on domestic domicile; and (c) a Korean national residing in a voluntary auction procedure claimed opposing power under the Housing Lease Protection Act, the case holding that Article 9 of the Act on the Immigration and Legal Status of Overseas Koreans (hereinafter “Overseas Koreans Act”) cannot be construed as a provision that allows overseas Koreans to file a report on the change of residence in the Housing Lease Protection Act in lieu of a resident registration under the Housing Lease Protection Act; (b) as long as the domestic domicile report of overseas Koreans cannot be seen as a resident registration under the Housing Lease Protection Act, the Korean national residing abroad cannot be deemed as a resident registration under the Housing Lease Protection Act on the ground that his/her family residing in the Korean national residing abroad has reported his/her domestic domicile; and (c) Article 10 (4) of the Overseas Koreans Act and Article 88-2 of the Immigration Control Act do not have the same effect as a resident registration under the Housing Lease Protection Act on the domestic domicile of a foreign nationality Korean.

Article 3(1) of the Housing Lease Protection Act; Articles 6, 9, and 10(4) of the Act on the Immigration and Legal Status of Overseas Koreans; Articles 31, 36, 88, and 88-2 of the former Immigration Control Act (Amended by Act No. 12421, Mar. 18, 2014); Article 75 of the former Enforcement Rule of the Immigration Control Act (Amended by Ordinance of the Ministry of Justice No. 761, Jan. 19, 2012);

Plaintiff (Counterclaim Defendant) (Law Firm Tae & Yang LLC, Attorneys Hah-ho et al., Counsel for defendant-appellant)

Defendant-Counterclaim (Attorney Choi Young-chul et al., Counsel for plaintiff-appellant)

Seoul Central District Court Decision 2013Da522652, 52669 Decided November 1, 2013

June 17, 2014

1. The part of the judgment of the court of first instance regarding the lawsuit shall be revoked.

2. The Defendant (Counterclaim Plaintiff) shall deliver to the Plaintiff (Counterclaim Defendant) the real estate indicated in the separate sheet.

3. Of the part concerning the counterclaim in the judgment of the court of first instance, the part against the plaintiff (Counterclaim defendant) is revoked, and the defendant (Counterclaim plaintiff)'s counterclaim claim corresponding to the revoked part is dismissed.

4. The total cost of the lawsuit is assessed against the Defendant-Counterclaim Plaintiff by adding the principal lawsuit and the counterclaim to the lawsuit.

5. Paragraph 2 can be provisionally executed.

1. Purport of claim

A. Main suit: The Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) delivered to the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) the real estate indicated in the separate sheet (hereinafter “instant apartment”) to the Plaintiff.

B. Counterclaim: The Plaintiff shall pay to the Defendant the amount of KRW 330,000,000 at the same time, calculated by the ratio of 20% per annum from the day following the delivery date of the apartment of this case to the day of full payment.

2. Purport of appeal

The same shall apply to the order.

A principal lawsuit and a counterclaim shall be deemed simultaneously.

1. Basic facts

A. On June 12, 2007, the Defendant is a Korean national residing abroad who acquired the permanent residence of Canada, and leased the instant apartment from Nonparty 1, the owner of the instant apartment from July 9, 2007 to July 8, 2009, with the lease deposit of KRW 30 million from July 9, 2007 to July 4, 2007, and has completed the domestic domicile report after being handed over the apartment on July 4, 2007. The Defendant’s wife, Nonparty 2, and Nonparty 3, as a foreign national national Korean who acquired the Canadian nationality, have completed the domestic domicile report with the instant apartment as his residence on July 19, 207, and have resided together with the Defendant from that time to that time.

B. On May 27, 2011, the Seoul Central District Court rendered a decision to commence the voluntary auction of the instant apartment (Seoul Central District Court Decision 201Ma15309, Seoul Central District Court) and the Defendant reported the right as a lessee in the voluntary auction procedure on August 16, 2011.

C. On May 17, 2012, the Plaintiff: (a) paid the sales price after being awarded a successful bid as a purchaser in a voluntary auction procedure; and (b) completed the registration of ownership transfer on the instant apartment.

[Reasons for Recognition: Facts without dispute, Gap 1, Eul 1, Eul 1, 3, 4, 17, 21, 24 (including virtual numbers; hereinafter the same shall apply) and the purport of the whole pleadings]

2. The parties' assertion

A. The plaintiff's assertion

1) Since the Defendant was a tenant who did not complete his resident registration and did not acquire the opposing power under the Housing Lease Protection Act, it cannot claim the right of lease against the Plaintiff who acquired ownership in the voluntary auction procedure. The Defendant is obligated to deliver the instant apartment to the Plaintiff, the owner of the instant apartment.

2) Since the Defendant agreed on July 10, 2012 to deliver the instant apartment to the Plaintiff, the Defendant is obligated to deliver the instant apartment in accordance with the agreement.

B. Defendant’s assertion

1) The Defendant, as a Korean national residing abroad, was unable to file a move-in report under the Resident Registration Act, and filed a move-in report pursuant to Article 6 of the Act on the Immigration and Legal Status of Overseas Koreans (hereinafter “Overseas Koreans Act”). The Defendant’s domestic domicile has the same effect as a move-in report under the Resident Registration Act pursuant to Article 9 of the Overseas Koreans Act. Thus, the Defendant is a lessee who has acquired opposing power under the Housing Lease Protection Act

2) Even if the same effect as the moving-in report under the Resident Registration Act is not granted to the Defendant’s domestic domicile report, the wife and his/her wife, who is a family living together with the Defendant, as a foreign nationality Korean, in accordance with the Overseas Koreans Act, and in such case, the report on the change of foreigner registration and place of stay under the Immigration Control Act pursuant to Article 10(4) of the Overseas Koreans Act is deemed to have been filed in lieu of the move-in report under Article 88(2) of the Immigration Control Act, so long as the Defendant’s family living together with the Defendant’s family

3) Since the Plaintiff, a transferee of the instant apartment, succeeded to a lessor’s status pursuant to Article 3(4) of the Housing Lease Protection Act, the Plaintiff, at the same time, is obligated to pay the Defendant the lease deposit amount of KRW 30 million and the damages for delay.

4) Meanwhile, the Plaintiff asserted that the Defendant agreed to deliver the instant apartment on July 10, 2012, but there was no such fact.

3. Determination

A. Determination as to whether the defendant's domestic domicile report can be seen as a "resident registration", a requisite for setting up against the Housing Lease Protection Act

Article 9 of the Overseas Koreans Act provides, “If it is necessary to verify resident registration certificates, certified copy or abstract of resident registration cards, foreigner registration certificates, or foreigner registration certificates in various procedures and transactional relations, etc. as prescribed by the Acts and subordinate statutes, it may be substituted by the report card of domestic place of residence or the certificate of domestic place of residence.” However, the above provision is interpreted to the effect that the certificate of domestic place of residence can be substituted by the report card or the certificate of domestic place of residence, etc. under the language and text, and it is reasonable to deem that the legal effect as to the domestic place of residence of overseas Koreans is not recognized unless there is an express provision regarding the resident registration. Thus, the resident registration which is prescribed as the requirement for opposing power in Article 3(1) of the Housing Lease Protection Act is prepared by the announcement method that enables a third party to clearly recognize the existence of the right of lease for the purpose of transaction safety (see, e.g., Supreme Court Decision 200Da58026, 58033, Jan. 30, 2001).

Therefore, the defendant who is a Korean national residing abroad can not acquire opposing power under the Housing Lease Protection Act.

B. Determination as to whether the domestic domicile report of the defendant's living together can be seen as a "resident registration", which is an requisite to oppose the Housing Lease Protection Act

1) The requirements for setting up against the "resident registration" under the Housing Lease Protection Act includes the resident registration of the tenant and his/her spouse and other family members living together (see Supreme Court Decision 87Meu14, Oct. 26, 1987). A foreign nationality Korean who reported the domestic place of residence in accordance with Article 6 of the Overseas Koreans Act shall be deemed to have reported the change of the foreigner registration and the place of stay under the Immigration Control Act in accordance with Article 10(4) of the Overseas Koreans Act, and the change of the foreigner registration and the place of stay in accordance with Article 88-2 of the Immigration Control Act in lieu of

2) However, where a Korean national residing abroad entered into a lease agreement and reported his domicile, the domestic domicile report of a foreign nationality Korean who is not the lessee’s family living together cannot be deemed as a resident registration under the Housing Lease Protection Act. The reasons are as follows.

① Article 3(1) of the Housing Lease Protection Act provides that even in cases where the lease is not registered, when a lessee completes the delivery of a house and the resident registration, it shall take effect against a third party from the following day, and in light of the legislative purport of the Housing Lease Protection Act aimed at ensuring the stability of the residential life of citizens, the requirements for setting up against the “resident registration” under the Housing Lease Protection Act includes not only the lessee himself/herself but also his/her spouse’s resident registration (see Supreme Court Decision 87Meu14, Oct. 26, 1987, etc.). As above, the grounds for recognizing the opposing power in the moving-in report of the lessee’s family living together with the lessee lies in the lessee’s status as the tenant’s living assistant. However, the Defendant, who entered into the instant lease agreement, cannot be deemed as having filed a resident registration, which is the requisite for setting up the Housing Lease Protection Act even if he/she reported the domestic domicile on his/her own as seen earlier.

② As seen earlier, if a Korean national residing abroad entered into a lease agreement and reported his/her domestic domicile, it cannot be deemed that the requirements for counterclaim under the Housing Lease Protection Act were the resident registration. Therefore, from a third party’s standpoint, it is unnecessary to examine whether the lessee is a Korean national residing abroad, and whether the lessee has reported his/her domestic domicile. If interpreted as alleged by the Defendant, it would be unreasonable to examine whether the family living together with the Korean national residing abroad has reported the domestic domicile.

③ Article 3(1) of the Housing Lease Protection Act provides that a resident registration that provides as the requirements for opposing power along with the delivery of a house is prepared by a public announcement method that enables a third party to clearly recognize the existence of a right of lease for the safety of transaction (see, e.g., Supreme Court Decision 2000Da58026, 58033, Jan. 30, 2001). However, according to Article 75 of the former Enforcement Rule of the Immigration Control Act (amended by Ordinance of the Ministry of Justice No. 761, Jan. 19, 2012), which applies to the instant case, the certificate of alien registration is issued by the principal or his/her legal representative or person delegated by the head of the office or branch office, or the head of the Si/Gun/autonomous Gu, other than those deemed necessary for public interest. Thus, there is no way to view it as having been issued a certificate of alien registration in the auction procedure, etc., and thus, there is no means of publication like the resident registration.

(4) The Supreme Court precedents that include the resident registration of a family living together in the Housing Lease Protection Act as a requisite for setting up against the tenant under the Housing Lease Protection Act include cases where the tenant takes over the house and functions as a method of public announcement of resident registration of his/her family living together. As such, the tenant’s family living together with the tenant’s family living together with the same or similar method of public announcement is difficult to recognize as the tenant’s resident registration. In this case, the tenant’s family living together with the same or similar method of public announcement (A, B, B

C. Sub-committee

Since the Defendant failed to obtain opposing power under the Housing Lease Protection Act, all of the Defendant’s arguments premised on this premise are without merit. Therefore, the Defendant is liable to deliver the instant apartment to the Plaintiff, the owner of the apartment (as long as citing the claim for delivery of the instant apartment based on the Plaintiff’s ownership, no judgment is made regarding the claim for delivery pursuant to the agreement), and the Plaintiff is liable to pay the lease deposit and the damages for delay of the instant apartment after being delivered the instant

4. Conclusion

The plaintiff's claim for counterclaim shall be accepted on the grounds of its reasoning, and the defendant's counterclaim claim shall be dismissed on the grounds of its ground. Since the judgment of the court of first instance is unfair on the grounds of a different conclusion, the plaintiff's appeal shall be accepted, and the part concerning the principal lawsuit in the judgment of first instance shall be revoked, and the defendant's claim for counterclaim corresponding to the revoked part shall be dismissed.

(attached Form omitted)

Judge Lee Gyeong-sck (Presiding Judge)