[1] Criteria for determining the validity of resident registration as a requisite for counterclaim under Article 3 (1) of the Housing Lease Protection Act

[2] In order to exercise opposing power under the Housing Lease Protection Act, whether the delivery of a house and the resident registration should continue to exist (affirmative)

[3] Where resident registration is revoked ex officio, whether the opposing power of the housing lessee under the Housing Lease Protection Act is lost

[1] Article 3 (1) of the Housing Lease Protection Act provides for the requirements for opposing power along with the delivery of a house. Since the resident registration is prepared by a public announcement method that enables a third party to clearly recognize the existence of a lease for the safety of transaction, the issue of whether the resident registration has the effect of public announcement of a lease shall be determined depending on whether it can be determined by social norms as to whether the lessee is registered as a person who has an address or residence in the pertinent lease building as a resident

[2] In light of the purport of Article 3(1) of the Housing Lease Protection Act that grants strong opposing power to the housing lessee in real rights registered with the requirements for delivery of the house and resident registration, the requirements for setting up against the delivery of the house and resident registration in the housing lease without any other method for public announcement shall not be sufficient if they meet the requirements for opposing power at the time of the acquisition of the opposing power, but shall continue to exist in order to maintain its opposing power.

[3] In principle, when a resident registration is cancelled as an ex officio measure under the Resident Registration Act and the Enforcement Decree of the Resident Registration Act without the intention of a housing lessee, the opposing power shall be lost. However, the ex officio system under the Resident Registration Act is intended to promote convenience in the lives of residents by clearly understanding the movement of population, such as residential relations, and promote the proper management of administrative affairs. Since the Housing Lease Protection Act stipulates the resident registration as an opposing power in the Housing Lease Protection Act is intended to clearly recognize the existence of the lease for the safety of transaction and its purport differs from that of a third party, the opposing power shall be maintained retroactively if it is clearly revealed that the housing lessee had the intention to maintain the resident registration because the cancelled resident registration is restored in accordance with the procedure prescribed in the Housing Registration Act or re-registered under Article 29 of the Enforcement Decree of the same Act after the ex officio cancellation or if the ex officio cancellation is not restored by the procedure under the Resident Registration Act. However, if the ex officio cancellation is not implemented after the re-registration, it is reasonable to deem that the lessee in good faith has no opposing power against the lessee.

[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, Articles 1, 17-2 and 17-3 of the Resident Registration Act, Article 29 of the Enforcement Decree of the Housing Lease Protection Act

[1] Supreme Court Decision 2000Da8069 decided Jun. 9, 200 (Gong2000Ha, 1633) Supreme Court Decision 2001Da63216 decided Dec. 27, 2001 (Gong2002Sang, 359) Supreme Court Decision 2001Da80204 decided Mar. 15, 2002 (Gong2002Sang, 899) Supreme Court Decision 2002Da1796 decided May 10, 202 (Gong2002Ha, 1369) (Gong2002Da15467 decided Jun. 14, 200 (Gong2002Ha, 165) / [2002Ha, 165] Supreme Court Decision 2002Da37979 decided Apr. 29, 2008

Plaintiff (Attorney Go-do et al., Counsel for plaintiff-appellant)

Defendant

Seoul District Court Decision 2001Na37025 delivered on March 20, 2002

The appeal is dismissed. The costs of appeal are assessed against the defendant.

1. As to the assertion about the validity of disclosure

Article 3 (1) of the Housing Lease Protection Act provides for the requirements for opposing power along with the delivery of a house. Since a resident registration has been prepared by a public announcement method that enables a third party to clearly recognize the existence of a lease for the safety of transaction, the issue of the validity of a public announcement of a resident registration shall be determined depending on whether it can be recognized that a lessee is registered as a person who has an address or residence in the relevant lease building due to the resident registration under ordinary social norms (see Supreme Court Decision 2001Da80204, Mar. 15, 2002).

The court below accepted the judgment of the court of first instance. The court below determined that the building of this case is one of the multiple floors and 502 units of the building of this case, since the loan of this case is the aggregate building of the 4th floor above the real estate registration injury, but its actual status is the 5th floor above the ground and the 5th floor above the ground, and separate external stairs and entrances are installed in the 4th floor above the ground, but the 4th and the 5th floor are connected with each other by the interior stairs, and the building of this case is owned by the same person, and the public charges such as water charges and electricity charges are integrated and notified. The building of this case is the 402 unit of the 402 unit of the building of this case, which is the 402 unit of the 402 unit of the building leased by the plaintiff.

In light of the above legal principles and records, the above fact-finding and decision of the court below are just, and there is no error of law by misunderstanding of facts against the rules of evidence or misunderstanding of legal principles as to the requirements for opposing

2. As to the assertion about the continuity of disclosure

The court below affirmed the judgment of the court of first instance, and found that the plaintiff was re-registered as the building of this case on July 9, 1999 when the plaintiff did not move his resident registration to the will to maintain the resident registration of this case on July 9, 199, after the expiration of the lease contract, after leaving part of the household area in the leased house of this case for the mother's nursing, and the mother was living in the Dong office on March 8, 199. After making a public announcement at the Dong office in accordance with the procedures prescribed by the Resident Registration Act in accordance with the resident registration law, the plaintiff's ex officio cancellation of the resident registration of this case on April 17, 1999 and raised an objection to this case on July 9, 199.

In light of the purport of Article 3(1) of the Housing Lease Protection Act giving strong opposing power to the housing lessee in real rights registered with the requirements for delivery and resident registration, the requirements for opposing power of the housing delivery and resident registration should continue to exist for the purpose of maintaining the opposing power (see Supreme Court Decision 97Da43468 delivered on January 23, 1998). Since the aforementioned requirements are deemed as the opposing power of the resident registration, in principle, even if the resident registration is cancelled by the head of Si/Gun/Gu without the consent of the housing lessee and the Enforcement Decree of the Resident Registration Act, the opposing power of the resident registration system under the Resident Registration Act is lost even in cases where the resident registration is cancelled by the head of Si/Gun/Gu pursuant to the Resident Registration Act and the Enforcement Decree of the Housing Lease Protection Act, but it is intended to promote convenience of the residents' lives, such as residential relations, and to properly process administrative affairs, and the intention of the resident registration in the Housing Lease Protection Act is clearly different by the third party to the Housing Lease Protection Act and thus, it is clearly different from the purpose of the Act.

Nevertheless, the judgment of the court below to the effect that when the resident registration was cancelled ex officio is erroneous, it erred by misapprehending the legal principles on the existence of opposing power when the resident registration was cancelled. However, according to the facts and records established by the court below, the plaintiff raised an objection after the resident registration was cancelled and re-registers the building of this case. Since the defendant is the subordinate tenant who acquired the right of lease on the lower part of the building of this case before the cancellation, and the plaintiff received the successful bid of the building of this case after re-registration, it shall be deemed that the opposing power of the plaintiff was continuously maintained in relation to the defendant, and therefore, the judgment of the court below to recognize the opposing power of the plaintiff is just in its conclusion and therefore, the above erroneous

3. Conclusion

Therefore, the appeal is 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.

Justices Son Ji-yol (Presiding Justice)