Incheon District Court Decision 2013 Gohap3711 (Law No. 26, 2013)

Requirements for opposing power of a housing lessee whose resident registration has been transferred against his will;

The opposing power that a housing lessee has already acquired is maintained regardless of the transfer of a resident registration, in case where the resident registration was voluntarily transferred by a third party without the intention of a housing lessee and there is no reason to impose liability on a housing lessee with respect to a wrong transfer of resident registration.

2013Na2023912 Demurrer against distribution

KimA

Korea

Incheon District Court Decision 2013Gahap3711 Decided September 26, 2013

March 20, 2014

April 24, 2014

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the court of first instance shall be revoked. Among the dividend table prepared by the same court on April 24, 2013 with respect to the auction case of real estate rental in Incheon District Court 201TTY 26488, the dividend amount of the plaintiff shall be corrected to OOO, and the dividend amount to the defendant shall be corrected to OOOO, respectively.

1. Basic facts

"The court's explanation on this part" is added to "No. 8-103 of conduct 8-103 of the judgment of the court of first instance (hereinafter referred to as "place of residence of the courtB") next to "No. 15 of the auction procedure of this case" and "No. 17 of the third 17 of the 3rd 17th 207 (the highest statutory period among the national taxes for which the defendant requests the delivery is made shall be December 26, 2007)" (the sum of the national taxes and additional dues for which the defendant requests the delivery exceeds the statutory period prior to November 7, 2008, exceeds the amount of the defendant's OOOOOO as seen below). Thus, the plaintiff's argument is justified by the main sentence of Article 420 of the Civil Procedure Act, and the plaintiff's argument on February 2.

On or after June 18, 2008, the resident registration of KimCC and KimD, a family member, remains in the instant real estate even after the date of the transfer of the Plaintiff’s resident registration to another place. On or after August 28, 2008, the transfer of the resident registration of the above KimCC and KimD to another place was conducted without the intention of the lessee, and thus, the Plaintiff cannot be held liable. As such, the Plaintiff’s opposing power and preferential right to payment regarding the lease of this case is maintained. Meanwhile, since the Defendant’s national tax claims against KimE are more than the date of the Plaintiff’s statutory date, the Plaintiff’s claim for the lease deposit is more than the date of the Plaintiff’s fixed date, and thus, the OOO of the Plaintiff’s claim for the lease deposit should be preferentially distributed than the Defendant’s national tax and its additional claims.

3. Determination

A. In light of the purport of Article 3(1) of the Housing Lease Protection Act that grants strong opposing power to a housing lessee in a real right registered with the requirements for a delivery of a house and a resident registration, it is reasonable to interpret that the requirements for setting up against the delivery of a house and a resident registration should continue to exist in order to maintain its opposing power, rather than to satisfy the requirements at the time of acquiring its opposing power (see, e.g., Supreme Court Decision 2000Da37012, Sept. 29, 2000). Therefore, on June 18, 2008, when the Plaintiff transferred his resident registration from the instant real estate to another place, the Plaintiff lost its opposing power and preferential repayment right as a lessee, but completed the move-in report with the instant real estate (see, e.g., Supreme Court Decision 2000Da37012, Nov. 7, 2008). 198

However, since the resident registration under Article 3(1) of the Housing Lease Protection Act includes the resident registration of the tenant's family such as his/her own child, even if the tenant acquired the opposing power of the right of lease by moving into the location of his/her house, and the tenant transferred his/her house to another place, if part of the family members who belonged to the unified household still remain in possession of the relevant leased house and continued the resident registration, then the tenant cannot be deemed as a secession of the entire resident registration, and as a whole, the tenant's opposing power against the third party is not lost (see Supreme Court Decision 98Da5968, Jun. 12, 1998). However, in full view of the overall arguments in the testimony of the Plaintiff, KimCC and KimD, who is the Plaintiff's child, temporarily resided in the real estate after June 18, 2008, as alleged by the Plaintiff, the Plaintiff could not be deemed as maintaining the opposing power of the DoB, which is the first resident registration of the Plaintiff's domicile.

B. Meanwhile, in cases where the resident registration was voluntarily transferred by a third party without the intention of the resident registration, and there is no reason to impose liability on the housing lessee for the erroneous transfer of resident registration, it is reasonable to view that the opposing power that the housing lessee has already acquired is still maintained regardless of the transfer of resident registration (see the above Decision 2000Da37012).

In full view of the following facts, the following facts are acknowledged, and the purport of evidence Nos. 6, B, 9, 21, Eul evidence Nos. 3 and 4, and the testimony and arguments of the above witnesses. According to this, there is room to regard the transfer of the resident registration of KimCC as the tenant against the intention of the plaintiff who is the tenant, and the transfer of the resident registration of KimD is against the will of the plaintiff who is the tenant and KimD.

① On June 25, 2004, the Plaintiff divorced from the previous wife, and the Plaintiff was designated as the person with parental authority and care of KimCC, KimD, who was a minor child at the time of the divorce, and the Plaintiff brought up KimCC and KimDD in the instant real estate. ② At the time of the divorce, the Plaintiff was decided on July 17, 200B to change the person with parental authority and care of KimCC, KimD, and Kim DD to the dueB at the request of JungB, and the decision was confirmed around that time. Accordingly, on August 28, 2008, the Plaintiff changed the resident registration of KimCC and KimD as the person with parental authority and care of KimCC and KimD, who had been a minor child, and the Plaintiff continued to reside in the instant real estate, but KimD was mainly residing in the real estate of this case with the Plaintiff, and the Plaintiff was not aware that his resident registration was transferred to the real estate of this case.

However, in light of the fact that the Housing Lease Protection Act grants strong opposing power to a real right as a requirement for a resident registration, it is not a wide range of exceptional reasons for recognizing opposing power despite the absence of a resident registration. Considering the following circumstances recognized by the aforementioned evidence, it is insufficient to conclude that the above facts alone constitute "where the transfer of the resident registration of KimCC, KimD was made at will by a third party," and there is no sufficient evidence to recognize otherwise." In other words, the transfer of the resident registration of KimCC, and KimD was made in order to share the same status with the fixed-B, which is the mother of the person in parental authority and the career by the court trial, and was changed to the fixed-B, which was made by the person in parental authority and the career, and at least the person in parental authority and the career of the minor, the person in parental authority and the career of the minor, at least 18D and the person in parental authority and the person in parental authority were aware of the changed resident registration, the person in parental authority and the person in parental authority at least 15BD.

C. Comprehensively taking account of the above, the Plaintiff acquired new opposing power and preferential right to payment from November 7, 2008, which completed the move-in report as the instant real estate, and thus, the auction court’s measure that preferentially distributes OOO members to the Defendant’s national tax (including additional dues) claims prior to the statutory due date is lawful.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.