Effect of lease transfer without the consent of the lessor;

The contract that transfers the right of lease without the consent of the lessor can not be set up against the lessor, and it is effective between the lessee and the transferee. In this case, the lessee is obligated to obtain the consent of the lessor for the transferee.

Article 629 of the Civil Act

Supreme Court Decision 4288 civilianSang50 Delivered on July 7, 1955

[Judgment of the court below]

Defendant

Seoul Central District Court Decision 84Na3238 delivered on July 19, 1985

Seoul Central District Court Decision 84Da5739 delivered on November 23, 1984

The judgment of the court below is reversed.

The first instance judgment is revoked, and the case shall be remanded to the Seoul Civil Procedure District Court.

We examine the grounds of appeal.

According to the reasoning of the judgment below, the plaintiff's ground of claim of this case is as follows.

As part of the urban planning project for the creation of a citizen park in Jongno-gu Seoul Metropolitan Government in 1984, the non-party planned to remove the buildings located in the above park building zone from among the above buildings of the same Dong-dong, Dong-dong, and Dong-dong, and the non-party who was moving into the above building zone as relocation measures for the so-called tenants who were moving into the above building subject to removal at rent or monthly, the non-party was granted the right to move into the above apartment complex in the Godong-dong, Gangdong-gu, Seoul Metropolitan Government and the non-party was granted the right to move into the above apartment complex at 43.48 square meters at 43.48 square meters at the time of the above removal, as the tenant of the above building in the above area was also granted the right to move into the above apartment complex from the Seoul Metropolitan Government to the 30th 1984, May 4, 1984. The defendant was assigned the right to rent the above apartment complex to the non-party 600,000,00 won.

However, even if the Seoul Special Metropolitan City, which is the lessor of the above leased apartment, prepares and keeps the judgment on this issue, it is nothing more than that the Seoul Special Metropolitan City voluntarily prepares and keeps for the purpose of ensuring the convenience of the management of its property by clarifying the lease relationship of the above apartment, and it does not have the legal effect that the change of the name itself in the tenant list itself satisfies any change of rights or requirements for setting up against the lessee. Therefore, the claim for the performance of the procedure for change of the lease right of this case, which the plaintiff seeks, cannot be considered as a claim for confirmation of a legal relationship appropriate for a judicial claim, and therefore there is no benefit or need to protect his rights (the defendant is not in a position to change the tenant name in the tenant list, which is prepared and kept by Seoul Special Metropolitan City). Furthermore, even if the plaintiff's lawsuit of this case is considered as a lawsuit for the performance of the procedure for notifying the transfer of the lease right of this case, the notification of the transfer becomes an effective requisite or requisite for setting up against the lessee (the transfer of the lease only becomes effective and must obtain consent from the lessor).

However, the contract that transfers the right of lease without the consent of the lessor can not be set up against the lessor, and in this case, the lessee is obligated to obtain the consent of the lessor for the transferee. Although it is inappropriate for the Plaintiff to seek a change of the name on the tenant list kept by the Seoul Special Metropolitan City to the Defendant in this case, it should be deemed to be the purport that the consent of the Seoul Special Metropolitan City, which is the lessor, would be changed. In addition, even in a case where it is deemed that the lessor seeks a notification of the transfer of the right of lease, such as the time of the original adjudication, the transferee can achieve the purpose of the transfer,

Ultimately, the lawsuit of this case is necessary to resolve the dispute between the original defendant in that the plaintiff who acquired the right of lease is seeking to obtain the consent of the Seoul Special Metropolitan City, a lessor, and is able to actually settle the dispute by the judgment, and thus there is a benefit of lawsuit. However, the court below's rejection of the lawsuit by misapprehending the legal principles on the interest of the lawsuit, which affected the judgment, and this constitutes a ground for reversal under Article 12 of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings.

Therefore, according to the records, the judgment of the court below is reversed, and the party members decided to dismiss the lawsuit of this case on the same ground as the above original judgment, but this cannot be maintained as there are no errors in law as seen above. Thus, the judgment of the court of first instance is revoked and the case is remanded to the court of first instance for a new trial and determination. It is so decided as per Disposition by the assent of all participating judges

Justices O Sung-sung(Presiding Justice)