[1] Whether the title trustee can seek a housing surrender on the ground that he/she is the owner against a tenant who entered into a lease contract with the title truster of a house (negative)

[2] In a case where a title truster of a house entered into a lease agreement and the title trustee was finally transferred the right to dispose of the house from the title truster, whether the title trustee constitutes the transferee of the leased house under Article 3(2) of the Housing Lease Protection Act (affirmative)

[1] Lease to which the Housing Lease Protection Act applies cannot be deemed to be limited to cases where a lease contract is concluded between a tenant and a landlord who is the owner of a house, and it also includes cases where a lease contract is concluded between a title truster who is not an owner of a house, and is entitled to legally conclude a lease contract on a house. In such cases, the lessee can assert that the lease is a legitimate lease even in relation to the title trustee who is the owner of a house on the registry, while the title trustee cannot seek an explanation against the lessee on the ground that he/she is the owner of the house.

[2] In a case where a title truster of a house enters into a lease agreement and the title trustee is wholly transferred the right to dispose of the house including the right to lease a house from the title truster, the title trustee shall be deemed to have succeeded to the status of the lessor as the transferee of the house in relation to the lessee pursuant to Article 3(2) of the Housing Lease Protection Act as long as the lessee completes the transfer of house

[1] Article 3 (1) of the Housing Lease Protection Act, Article 103 of the Civil Act / [2] Article 3 (2) of the Housing Lease Protection Act, Article 103 of the Civil Act / [title trust]

[1] Supreme Court Decision 91Da13830 delivered on August 13, 1991 (Gong1991, 2348), Supreme Court Decision 95Da22283 delivered on October 12, 1995 (Gong1995Ha, 373), Supreme Court Decision 96Da9218 delivered on June 28, 1996 (Gong1996Ha, 2349) / [2] Supreme Court Decision 86Da164 delivered on March 24, 1987 (Gong1987, 708), Supreme Court Decision 93Da4083 delivered on November 23, 1993 (Gong194, 168)

Plaintiff (Attorney Lee Jong-soo, Counsel for plaintiff-appellant)

Defendant

Seoul District Court Decision 98Na11832 delivered on September 15, 1998

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

The grounds of appeal are examined.

1. On the first ground for appeal

In light of the records, the court below confirmed on March 23, 1994 that the plaintiff sold 3 parcels of land owned by the plaintiff to the non-party on March 23, 1994 in the purchase price of 630,000,000 won, and agreed to receive 100,000,000 won from the non-party on the date of the contract, and 530,000,000 won from the non-party for the purchase price of the above 3 parcels of land, and the non-party constructed a new house under the name of the plaintiff and sold it to the non-party for sale. The non-party can only be imposed business income tax, and the transfer income tax is not imposed upon the non-party's construction permit under the plaintiff's name under the agreement with the plaintiff, and the non-party's right to the above 3 parcels of land is 15,00,000 won under the name of the non-party's title, 90,196.

2. On the second and third grounds for appeal

The lease governed by the Housing Lease Protection Act cannot be limited to cases where a lease contract is concluded between a lessee and a lessor who is the owner of a house. It includes cases where a lease contract is concluded between a title truster who is not the owner of a house, but has the right to legally conclude a lease contract on a house. In such cases, the lessee can assert that the lease is legitimate in relation to the title trustee who is the owner of the house on the registry, while the title trustee cannot seek an explanation against the lessee on the ground that the lessee is the owner of the house (see, e.g., Supreme Court Decisions 95Da2283, Oct. 12, 1995; 96Da9218, Jun. 28, 1996). Accordingly, if the title trustee is wholly transferred the right to dispose of the house, including the right to lease the house from the title truster, and the lessee completes the transfer of the house and resident registration, the status of the lessor as the transferee of the house pursuant to Article 3(2) of the Housing Lease Protection Act shall be deemed to have been succeeded to the status of the lessee.

According to the facts established by the court below, the non-party newly constructed the building of this case and acquired its ownership at the original time, and the plaintiff was entrusted with the non-party on February 18, 1995, and then succeeded to the status of the non-party lessor in relation to the defendant by obtaining the right to dispose of the building of this case registered in the name of the plaintiff from the non-party through the mediation procedure on June 9, 1998, by obtaining the confirmation that the non-party owned the plaintiff's ownership. Thus, although the judgment of the court below was not appropriate, the measures that recognized the plaintiff as the transferee under the Housing Lease Protection Act for the building of this case are proper, and there is no error of law by misunderstanding the legal principles as argued in the Grounds for Appeal.

In addition, the assertion that the transferee of a building comprehensively takes over the status of the lessor includes the assertion that he succeeded to the status of the lessor under the Housing Lease Protection Act, so the judgment below is not erroneous in violation of the principle of pleading. The argument in the grounds of appeal as to this cannot be accepted.

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

Justices Cho Cho-Un (Presiding Justice)