[1] Whether Article 3(1) of the Housing Lease Protection Act applies to cases where a lease contract is concluded with a lessor who is not a housing owner but has a legitimate right to lease (affirmative); and whether the aforementioned provision may apply to a lease contract where a truster who concluded a real estate security trust contract for a house concluded a lease contract without the consent of the trustee but recovers the ownership from the trustee (affirmative)

[2] The requirements for "resident registration" under Article 3 (1) of the Housing Lease Protection Act to become a public announcement method that satisfies the requirements for opposing power

[3] In a case where Gap corporation entered into a real estate security trust contract with Eul trust company for the housing owned by Eul, and entered into a lease contract concurrently with Eul company without the consent of Eul company after completing the registration of ownership transfer based on the trust, Byung transferred the above housing on the same day, Byung completed the registration of ownership transfer based on the trust property belonging to Eul company, and Jung completed the registration of ownership transfer based on the trust property belonging to the above housing on the same day, and Byung completed the registration of ownership transfer based on the fixed credit union's transfer of ownership, and then purchased the above housing, Byung acquired the opposing power of the right of lease immediately after the registration of ownership transfer was completed, and Byung acquired the opposing power of the right of lease, and Byung acquired the registration of ownership transfer due to the fact that Byung acquired the opposing power of the right of lease

[1] Lease to which Article 3(1) of the Housing Lease Protection Act applies is not limited to cases where a lease contract is concluded between a lessee and a lessor who is a housing owner, and includes cases 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.

In the event that a real estate security trust contract for a house has been concluded, the right to lease is general to the trustee unless there is a special agreement. However, it is evident that the above provision may apply to the lease contract when the truster recovers the ownership from the trustee after concluding the lease contract without the consent of the trustee

[2] Under Article 3(1) of the Housing Lease Protection Act, the resident registration, which is stipulated as the requirements for opposing power along with the delivery of a house, is prepared by the method of public announcement that enables a third party to clearly recognize the existence of a right of lease for the safety of transaction. Whether the validity of a lease is determined depending on whether a third party can recognize the existence of a right of lease with a resident registration. For a method of public announcement that can satisfy the requirements for opposing power of resident registration, only the mere formal resident registration is insufficient and the relationship of possession indicated on the basis of a resident registration can be recognizable by the third party.

[3] The case holding that, in case where Gap corporation entered into a real estate security trust contract with Eul trust company and Eul company, and entered into a lease contract concurrently with Eul company without Eul company's consent after completing the registration of transfer of ownership based on Eul company's trust, Byung transferred the above house on the same day, Byung completed the registration of transfer of ownership based on Eul's trust property's trust property's trust property's trust property's trust property's trust property's trust property's trust property's trust property's transfer of ownership, Eul completed the registration of transfer of ownership based on Byung's trust property's transfer of ownership as of the same day, Eul corporation's non-stock purchase of the above house without Eul company's consent at the voluntary auction procedure applied by Jung union's transfer of ownership, although Eul could not lease the above house without the trustee Eul company's consent, Eul acquired legitimate lease right's transfer right's trust property's trust property's transfer of the above house from the date of completion of the transfer of ownership to Byung's resident registration, and Byung could have acquired the opposing right of Byung corporation's lease right.

[1] Article 3 (1) of the Housing Lease Protection Act / [2] Article 3 (1) of the Housing Lease Protection Act / [3] Article 3 (1) of the Housing Lease Protection Act

[1] Supreme Court Decision 95Da22283 decided Oct. 12, 1995 (Gong1995Ha, 373), Supreme Court Decision 2007Da38908, 38915 decided Apr. 10, 2008 (Gong2008Ha, 1107) / [2] Supreme Court Decision 2000Da58026, 58033 decided Nov. 30, 2001 (Gong2001Sang, 541) Supreme Court Decision 2002Da38361, 38378 decided Nov. 8, 2002 (Gong203Sang, 3839)

Plaintiff (Counterclaim Defendant) (Law Firm Name, Attorney Error-hwan et al., Counsel for the plaintiff-appellant)

Seogjin Co., Ltd. (Law Firm Jungwon, Attorneys Lee Jong-sung et al., Counsel for the plaintiff-appellant)

Daegu District Court Decision 2018Na3890, 6073 Decided October 10, 2018

The appeal is dismissed. The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. A. The lease to which Article 3(1) of the Housing Lease Protection Act applies is not necessarily limited to cases where a lease contract is concluded between a tenant and a lessor who is a housing owner, and includes cases where a lease contract is concluded between a lessor who is not a housing owner and a lessor who has the authority to lawfully conclude a lease contract on a housing (see, e.g., Supreme Court Decisions 95Da2283, Oct. 12, 1995; 2007Da38908, 38915, Apr. 10, 2008).

In the event that a real estate security trust contract for a house has been concluded, the right to lease is general to the trustee, unless there is a special agreement. However, it is evident that the above provision may apply to the above lease contract when the truster recovers the ownership from the trustee after concluding the lease contract without the consent of the trustee

B. Article 3(1) of the Housing Lease Protection Act provides as the requirements for opposing power along with the delivery of a house, which is the method of public announcement that enables a third party to clearly recognize the existence of the right of lease for the safety of transaction. Whether the validity of a lease is determined depending on whether a third party can recognize the existence of the right of lease with a resident registration. For a method of public announcement that can satisfy the requirements for opposing power of resident registration, it should be the extent that a third party can recognize that the possession of the right of lease, which is indicated on the basis of a resident registration, is insufficient merely by the mere formal resident registration, and that the relationship of possession, which is indicated on the basis of the resident registration, can be recognized by the third party (see, e.g., Supreme Court Decisions 200Da58026, 58033, Jan. 30, 201; 2002Da38361, Nov. 8, 2002).

2. The reasoning of the lower judgment and the evidence duly admitted reveal the following facts.

A. On December 24, 2013, the Korea Transportation Industry Development Co., Ltd. (hereinafter “the Korea Transportation Industry Development”) concluded a real estate security trust agreement (hereinafter “instant trust agreement”) with a truster with respect to the instant housing owned by the Korea Transportation Industry Development Co., Ltd. (hereinafter “KB real estate trust”), a trustee-based development, a trustee-based real estate trust, a beneficiary-based trust, and a beneficiary-based credit union with respect to the instant housing, which is owned by the Korea Transportation Industry Development (hereinafter “KB”) and completed the registration of ownership transfer based on the Korea Transportation Industry Development on the same day.

B. The main contents of the instant trust agreement are as follows.

(1) The truster, a truster, shall actually continue to occupy and use the instant housing, which is a trusted real estate, and shall bear the actual management activities, such as preservation, maintenance, repair, etc. of the instant housing, and all the expenses incurred therein (Article 9(1)).

(2) The truster, a truster, shall not reduce the value by creating rights, such as lease, or changing the present state of real estate on trust, concerning the instant housing, which is the trusted real estate, without the prior consent of the truster, (Article 9(2)).

(3) After entering into the instant trust contract, a new lease or sub-lease contract shall be entered into in the name of the K non-real estate trust, a trustee, or in the name of the truster, subject to the prior consent of the K non-real estate trust, a trustee (Article 10(2)).

C. On January 27, 2014, the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) entered into the instant lease agreement with respect to the instant housing and development, and on the same day, concluded a move-in report to transfer the instant housing. However, while entering into the instant lease agreement, the development of the transport industry did not obtain the consent of the K non-real estate trust.

D. On April 8, 2014, the Korea Railroad Industry Development completed the registration of ownership transfer on the instant housing on the ground of the attribution of trust property (the receipt number 1 omitted), and the Pohang Port Credit Union completed the registration of ownership transfer on the instant housing on the same day (the receipt number 2 omitted).

E. Since then, the Pohang-gu New Port District requested a voluntary auction on the instant house, and the auction procedure was carried out. The Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) purchased the instant house in the auction procedure on February 17, 2017 and paid the price, and completed the registration of ownership transfer on February 20, 2017.

3. Examining the above facts in light of the aforementioned legal doctrine, as follows.

Although, at the time of entering into the instant lease agreement, it was impossible to lease the instant house without the consent of the K non-real estate trust, a trustee, at the time of entering into the instant lease agreement, it acquired legitimate right to lease by completing the registration of ownership transfer on April 8, 2014 on the instant house due to the reversion of trust property.

On January 27, 2014, the Plaintiff completed a move-in report after having received the instant house, and completed the move-in report. From that time, the Plaintiff, not the owner, appears to have resided in the resident registration of the instant house, and thus, it could be recognized that the Plaintiff was occupied by mediating the right of lease rather than the Plaintiff’s resident registration, and thus, the Plaintiff’s resident registration was performing the function of disclosing the lease from January 27, 2014, when the Plaintiff

Therefore, the Plaintiff acquired the opposing power of the right of lease as soon as the development of the passenger transport industry completed the registration of transfer of ownership with respect to the instant housing, and the registration of establishment of a mortgage on the part of the passenger transport correspondence agreement was made after the Plaintiff acquired the opposing power, and thus, the Plaintiff may oppose the Defendant, the purchaser of the instant housing, by

4. The judgment of the court below to the same purport is just, and the judgment of the court below did not err by misapprehending the legal principles on the timing for acquiring the opposing power of the trust under the Trust Act and the Housing Lease Protection Act, as otherwise alleged in the

Supreme Court Decision 2012Da93794 Decided February 27, 2014 cited in the ground of appeal by the Supreme Court Decision 2012Da93794 Decided February 27, 2014 is required for a lessor who has the authority to lawfully conclude a lease contract for housing to be applied by the Housing Lease Protection Act, and such conclusion

5. The Defendant’s appeal is without merit, 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.

Justices Lee Dong-won (Presiding Justice)