[1] 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)

[2] Where a lessee re-transfers his/her resident registration to a temporary different place with his/her family after acquiring opposing power, whether the opposing power becomes extinct (affirmative) and whether the opposing power is retroactively recovered (negative)

[1] In light of the purport that Article 3 (1) of the Housing Lease Protection Act grants strong opposing power to a housing lessee in a real right registered with the requirements for delivery of a house and resident registration, the requirements for setting up against the delivery of a house and resident registration in a housing lease without any other method for public notice should continue to exist in order to maintain its opposing power, rather than to satisfy the requirements when acquiring its opposing power.

[2] If a lessee of a house has completed a moving-in report to the location of the house and acquired the opposing power of the right of lease once he moves-in to a temporary or a different place for any reason after acquiring the opposing power of the right of lease, such opposing power can be deemed to be a secession of the resident registration as a whole or ultimately extinguished at the time of such moving-in. Thus, even if the lessee re-transfers the resident registration to the original domicile because of his long time, the extinguished opposing power is not recovered retroactively from the original domicile, not from the time of re-transfer, but from the time of re-transfer, a new opposing power that has no identity.

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

[1] Supreme Court Decision 86Da1695 delivered on February 24, 1987 (Gong1987, 524), Supreme Court Decision 88Da143 delivered on January 17, 1989 (Gong1989, 295), Supreme Court Decision 95Da44597 delivered on October 10, 197 (Gong1997Ha, 3378) / [2] Supreme Court Decision 95Da3038 delivered on January 26, 1996 (Gong196, 745)

Plaintiff (Attorney Lee Jae-hoon, Counsel for the plaintiff-appellant)

Masan Agricultural Cooperatives

Seoul High Court Decision 97Na18266 delivered on August 19, 1997

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

The grounds of appeal are examined.

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 delivery of a house and resident registration, it is reasonable to interpret that the requirements for opposing power such as the delivery of a house and resident registration should be satisfied only at the time of the acquisition of the opposing power, and that the requirements for opposing power should continue to exist in order to maintain the opposing power (see, e.g., Supreme Court Decisions 86Meu1695, Feb. 24, 1987; 8Da143, Jan. 17, 1989).

Therefore, if a lessee of a house has completed a moving-in report as the location of the house and acquired the opposing power of the right of lease, and then transferred the resident registration to a temporary or a different place with his family for any reason, it can be deemed as a secession of the resident registration as a whole or ultimately, since the opposing power is extinguished as at the time of such moving-in, and even if the lessee has re-transfered the resident registration to the original domicile as long as there is no long time, the extinguished opposing power is not recovered retroactively, but a new opposing power that has no identity from the time of re-transfer is re-transfered.

According to the reasoning of the judgment below, the court below acknowledged the fact that the plaintiff, as a tenant of the housing of this case, completed a move-in report on June 16, 1995, which was the transfer of the defendant's establishment registration, to the location of the housing of this case, and moved-in of the housing around July 10 of the same year. However, on December 16, 1995, the defendant transferred the resident registration of this case to another place on January 26, 1996, which was after the completion of the establishment registration of a neighboring mortgage on the housing site and building of this case, and re-transfer the resident registration to the original domicile on February 27 of the same year. The plaintiff had no objection to the right of lease acquired around July 10, 1995 due to the temporary transfer of the resident registration of this case, and the plaintiff's new objection to the right of lease and the right of lease cannot be seen to be in violation of the legal principles as a new objection to the right of lease and the right of opposing against the plaintiff.

In addition, the Supreme Court's judgment above cannot be said to require modification.

Therefore, the appeal shall be dismissed and the costs of appeal shall be assessed against the plaintiff who is the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Jong-ho (Presiding Justice)