In case where a lessee of a house acquires the opposing power of the right of lease and acquires the fixed date on the lease contract and re-transfers the resident registration to another place, whether the lessee is entitled to receive the security deposit in preference to those who have acquired the security right on the house after re-transfer (affirmative)

If a lessee of a house has completed a move-in report as the location of the house and transferred the resident registration to another place temporarily or permanently after acquiring the opposing power of the right of lease by moving-in, the opposing power becomes extinct as at the time of such move-in. If the lessee later transferred the resident registration to the location of the house again, the opposing power is not recovered retroactively, but a new opposing power arises from the time of re-transfer. In this case, if the lessee has already obtained a fixed date on the lease agreement before and after the moving-in lease agreement and maintains its identity, the lessee is entitled to receive the security deposit in preference to the person who has acquired the security right of the house after re-transfer without obtaining the fixed date on the re-transfer lease agreement.

Articles 3 and 3-2 of the Housing Lease Protection Act;

Supreme Court Decision 86Da1695 Decided February 24, 1987 (Gong1987, 524) Supreme Court Decision 97Da43468 Decided January 23, 1998 (Gong1998Sang, 609)

Plaintiff

Defendant

Busan High Court Decision 98Na2556 delivered on June 26, 1998

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

We examine the grounds of appeal.

If a lessee of a house has completed a moving-in report into the location of the house and transferred the resident registration to another place temporarily or permanently after acquiring the opposing power of the right of lease by moving-in, the opposing power becomes extinct as at the time of such moving-in. If the lessee later transferred the resident registration to the location of the house again, the opposing power is not recovered retroactively, but a new opposing power arises from the time of re-transfer (see Supreme Court Decision 97Da43468, Jan. 23, 1998). In such cases, if the lessee has already obtained a fixed date on the lease contract before and after the moving-in lease contract has already been made and maintains its identity, the lessee is entitled to receive the security deposit in preference to the person who has acquired the security right of the house after re-transfer without obtaining the fixed date at the time of re-transfer.

The court below held on October 13 of the same year that the defendant, a tenant of the apartment of this case, continued residing in the apartment of this case after having met the requirements for counterclaim and lease agreement under the Housing Lease Protection Act, and transferred only the resident registration to another place on June 5, 1995, and re-transfered the apartment of this case to the 14th of the same month. The plaintiff confirmed on October 13 of the same year that the registration of the establishment of the neighboring apartment of this case was completed under his name. The defendant did not obtain the fixed date again at the time of re-transfer, and it is just in accordance with the above opinion that he can receive the security deposit in preference to the plaintiff in the auction procedure, and there is no violation of the law of misunderstanding the Housing Lease Protection

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 Cho Chang-hun (Presiding Justice)