[1] The validity of a lease agreement concluded by a rental business operator for a publicly constructed rental without undergoing a lessee’s consent procedure, unilaterally stating the conditions of mutual conversion of rental deposit and rent (negative)

[2] Meaning of Article 8(2) of the former Enforcement Rule of the Rental Housing Act (attached Form 10) [Attachment 10] Article 10(1)4 of the Enforcement Rule of the Rental Housing Act “where rent has been in arrears for at least three consecutive months,” which provides for the grounds for termination of a lease agreement, and whether it constitutes grounds for termination in cases where a portion of the monthly rent is in arrears for at least three consecutive months and the total amount in arrears is at least three

[1] [Majority Opinion] Article 14(1) of the former Rental Housing Act (amended by Act No. 8852 of Feb. 29, 2008; hereinafter the same shall apply), Article 12(1) of the former Enforcement Decree of the Rental Housing Act (amended by Presidential Decree No. 20722 of Feb. 29, 2008; hereinafter the same shall apply), public announcement of standard rental deposit and standard rent for public rental housing (wholly amended by Act No. 2004-70 of Apr. 2, 2004), such as the Ministry of Construction and Transportation’s legislative purpose, should be deemed as a provision restricting the effectiveness of judicial agreement in light of the legislative purpose of the enactment of the Act and its legislative purport. In addition, if a person who intends to be provided with a rental housing fails to enter into a lease agreement with a lessee on the condition that the lessee can enter into a lease agreement with the standard rental deposit without unilateral consent of the lessee to convert the rental deposit into the rental housing with one another or the lessee’s right to enter into an agreement.

In cases where a rental business operator and a lessee are deemed to have expressed intent to enter into a lease contract under the terms and conditions of the original lease without mutual conversion of a rental deposit and a rental fee, i.e., the standard rental deposit and a rental fee, based on the standard rental deposit and a rental fee calculated by the notification of the Ministry of Construction and Transportation, and mutually convert the rental deposit and a rental fee into a contract based on the standard rental deposit and a rental fee, and thus null and void due to procedural errors, barring special circumstances. Therefore, a lease agreement shall continue to exist as a lease contract under Article 138 of the Civil Act on the condition of a rental deposit and a standard rental fee.

[Concurring Opinion by Justice Kim Shin, Justice Kim So-young, Justice Kwon Soon-il, and Justice Park Sang-ok] In a lease agreement for publicly constructed rental housing, where a lessor unilaterally converts the rental deposit and rent into one another without the lessee’s consent pursuant to the method prescribed by the Rental Housing Act and subordinate statutes, and a monthly rent violates the Rental Housing Act and subordinate statutes, which are effective provisions, by setting the amount below the standard rental deposit, the rental deposit under the lease agreement does not become null and void within the limit exceeding the standard rental deposit, and thus,

[2] According to Article 18(1) and (3) of the former Rental Housing Act (amended by Act No. 8852, Feb. 29, 2008; hereinafter the same) and Article 8(1) and (2) of the Enforcement Rule thereof (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 19, Jun. 20, 2008; hereinafter the same) (attached Form 10), a rental business operator of a rental house subject to the above Act can terminate a rental contract if there is a reason falling under any of the subparagraphs of Article 10(1) of the Standard Rental Housing Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 10), and subparagraph 4 of Article 18 provides that a rental business operator of a rental house subject to the above Act may terminate a

As stated above, “not less than three months” should be continued for not less than three consecutive months, there is no room for doubt that the number of arrears should be more than three times. However, if “not less than three months” is deemed excluded from the meaning of arrears, Article 640 of the Civil Act, which applies to a general lease, provides that “if the amount of arrears falls short of the amount of rent for two months,” a lessee of a rental house becomes more unfavorable compared to the provision on the grounds for termination of the term “if the amount of delay falls short of the amount of rent for two months” under Article 640 of the Civil Act, which applies to the general lease. This is contrary to the legislative intent that strictly limits the grounds for termination regarding a lease agreement subject to the application of the Rental Housing Act, so it is correct to read “not less than three months” as well as “amount of arrears for three months”

On the other hand, the above grounds for termination are stipulated as the consecutive arrears for not less than three months, and do not require that the total amount of monthly rents be paid be “not less than three months.” Therefore, even if some of the monthly rents are in arrears for not less than three consecutive months, it constitutes grounds for termination if the total amount of arrears is not less than three-month rents. This is because even if new rents are not less favorable than the general lease under the Civil Act, and it would result in an excessive unfavorable conclusion that the total amount of monthly rents cannot be terminated even if there is any increase in the annual rents.

[1] Article 1 of the former Rental Housing Act (amended by Act No. 852 of Feb. 29, 2008; see Article 1 of the current Special Act on Private Rental Housing and Article 1 of the current Special Act on Public Housing), Article 14(1) (see Articles 42(1) and 44(1) of the current Special Act on Private Rental Housing; Articles 48 and 49(1) of the current Special Act on Public Housing; Article 12(1) of the former Enforcement Decree of the former Rental Housing Act (amended by Presidential Decree No. 2072 of Feb. 29, 2008; see Article 44(1) of the current Special Act on Private Rental Housing; Article 44(1) of the current Enforcement Rule of the Special Act on Public Housing; Article 137, Article 138, and Article 618 of the current Enforcement Rule of the Special Act on Private Rental Housing / [2] Article 8(1) of the former Enforcement Rule of the Rental Housing Act (amended by Act No. 9(2) of the current Special Act)

[1] Supreme Court Decision 2010Da23425 decided July 22, 2010 (Gong2010Ha, 1651)

Daegu Construction Co., Ltd. (Bae, Kim & Lee LLC, Attorneys Song Jae-woo et al., Counsel for the defendant-appellant)

Defendant

Suwon District Court Decision 2012Na43710 decided May 3, 2013

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The grounds of appeal are examined.

1. The former Rental Housing Act (amended by Act No. 8852, Feb. 29, 2008; hereinafter the same shall apply) enacted to promote the construction of rental housing and ensure the stability of people’s residential life (hereinafter the same shall apply) stipulates that the standard terms and conditions of rental, such as qualifications, methods of selection, rental deposit, and rents, of rental housing, shall be prescribed by Presidential Decree in order to prevent rental business operators from arbitrarily determining rental deposit and rents (Article 14(1)). The former Enforcement Decree of the Rental Housing Act (amended by Presidential Decree No. 2072, Feb. 29, 2008; hereinafter the same shall apply) enacted upon delegation, prescribed that the first rental deposit and rents for publicly constructed rental housing under Article 16 of the Housing Act shall not exceed the standard rental deposit and standard rents determined and publicly notified by the Minister of Construction and Transportation (Article 12(1)); and that the Minister of Construction and Transportation’s standard rental deposit and rent for rental housing shall be deemed to be lower than the standard terms and conditions of lease agreement between the Minister of construction and Transportation.

As can be seen, the provision setting the upper limit of rental deposit and rent for publicly constructed rental housing ought to be deemed to be an effective provision that limits the legal effect of an agreement in violation of the said provision in light of the legislative purpose of the Act and its legislative purport. In addition, “a lessee’s consent” as stated in the notification of the Ministry of Construction and Transportation refers to a lessee’s choice of mutual conversion of the amount in a situation where a person who intends to be provided with a rental housing can enter into a lease agreement with a standard rental deposit and a standard rent. If a rental business operator presents the terms and conditions of a lease agreement by mutual conversion of a rental deposit and a rent, and allows the lessee to choose only out of either accepting the terms and conditions of a lease agreement or giving up subscription for a rental house, it cannot be deemed that the lessee’s right to consent is granted. Therefore, if a rental business operator intends to recruit a lessee with a rental deposit which is higher than the standard rental deposit by mutual conversion of a part of a rent into a rental deposit, he/she shall enter into a lease agreement on such terms and conditions (see Supreme Court Decision 2010Da23425, Jul. 222, 222, 20101010).

2. Meanwhile, in cases where a juristic act becomes null and void due to its violation of compulsory law, if the juristic act satisfies the requirements for another juristic act and it is deemed that both parties would have intended to engage in another juristic act if they knew of the invalidation above, the intent of the parties as to whether the other juristic act was committed shall have the same effect as that of the other juristic act pursuant to Article 138 of the Civil Act. In such a case, if the parties knew that it was null and void at the time of the juristic act, they would have expressed the intent to have decided in light of the principle of trust and good faith, taking into account transaction practices in cases where the parties knew that it was under specific circumstances such as at the time of the juristic act, (see, e.g., Supreme Court Decision 2009Da50308, Jul. 15, 2010). Such determination shall be made by taking into consideration the following two factors: (i) the developments, purpose and content of the juristic act; (ii) the reason for invalidation; and (iii) the result

In the lease contract for publicly constructed rental housing, a mutual conversion of the amount is made based on the standard rental deposit and standard rent, and a rental deposit is the amount exceeding the standard rental deposit, and the monthly rent is below the amount calculated by deducting the amount calculated by applying the specified interest rate from the difference of rental deposit, but if the lease contract is null and void without the lessee’s consent procedure by legal method, the lessee is no longer able to reside in the rental housing, and thus, the legislative purpose cannot be achieved to ensure the stability of national housing life through the supply of the rental housing. Accordingly, deeming that the lease contract was concluded under the terms of lease, i.e., “rental deposit shall be the standard rental deposit and the rental deposit shall be the contractual rent determined by deducting the standard rental deposit from the standard rental fee,” which is, “a lease contract was concluded under the terms of equity, if the rental business operator was aware of the invalidity of the above conditions at the time of concluding the contract, it is difficult to deem that the lease contract was concluded under such conditions.

Ultimately, in the event that the contractual rental deposit and the rent are calculated on the basis of the standard rental deposit and the standard rent, which are the upper limit of the rental deposit and the rent calculated by the notification of the above Ministry of Construction and Transportation, and the conversion between the contractual rental deposit and the rent is made, but procedural errors are null and void due to the violation of the mandatory law, barring special circumstances, it is reasonable to view that the rental business operator and the lessee would have expressed their intent to enter into a lease contract under the terms and conditions of the original lease which does not mutually convert the rental deposit and the rent into the standard rental deposit and the rent, i.e., the standard rental deposit and the rental fee under Article 138 of the Civil

In addition, as long as the lease contract concluded between the parties is converted into the standard rental deposit and the standard rental fee under the terms and conditions, the lease business operator is obligated to return the rental deposit received in excess of the standard rental deposit to the lessee as unjust enrichment, and the lessee is obligated to pay the rental business operator the standard rental fee with the rental fee under the lease contract.

3. According to Article 18(1) and (3) of the former Rental Housing Act and Article 8(1) and (2) and attached Form 10 of the Enforcement Rule thereof (wholly amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 19, Jun. 20, 2008) of the former Rental Housing Act (wholly amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 19), a rental business operator subject to the above Act can terminate a rental agreement if there is a ground falling under any of the subparagraphs of Article 10(1) of the standard rental agreement. Article 18(1) and (3) of the former Rental Housing Act provides that a rental business operator subject to

As stated above, “not less than three months” should be continued for not less than three consecutive months, there is no doubt that the number of arrears should be more than three times. However, if the meaning of the amount of arrears is deemed excluded, it may arise if the lessee of a rental house becomes more unfavorable compared with the provision of Article 640 of the Civil Act, which applies to a general lease, “if the amount of arrears falls short of the amount of rent for the two-month period” as the grounds for termination. This is contrary to the legislative intent that strictly limits the grounds for termination regarding a lease agreement subject to the application of the Rental Housing Act, so it is reasonable to view that the above “not less than three months” should not be less than three months as well as the amount of arrears.

On the other hand, the above grounds for termination are stipulated as a continuous arrears for not less than three months, and do not require that the total amount of monthly rents be paid be “not less than three months.” Therefore, even if some of the monthly rents are in arrears for not less than three consecutive months, if the total amount of arrears is not less than three-month rents, it constitutes grounds for termination. In such a case, even if new rents are not less than those of general lease under the Civil Act, but not less than those of the general lease under the Civil Act, and it would result in an excessive disadvantage to the rental business operator’s position.

4. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. On May 23, 2006, the Plaintiff entered into the instant lease agreement with the Defendant and the public rental house under Article 16 of the Housing Act, with a rental deposit of KRW 246,940,00,00 per month, and with a rent of KRW 593,00 per month, and with a rent of KRW 593,00 per month upon the last day of each month.

B. This is based on the terms and conditions of the standard rental deposit and standard rent, but the monthly rent shall be KRW 593,00,000 calculated by deducting the difference of the rental deposit at the time from the standard rent of KRW 137,191,00 from the amount calculated by multiplying the difference of the rental deposit at the time by the interest rate of the fixed deposit, instead of increasing the standard rental deposit of KRW 137,191,00, and the terms and conditions of the mutual conversion of the rental deposit and rent are based on the terms and conditions of the contract unilaterally presented by the Plaintiff. Therefore,

C. Afterwards, the Defendant filed a lawsuit against the Plaintiff claiming the return of the difference of rent (Seoul High Court 2010Na14461, 60525, 12109, 12109, etc.) by asserting that the part exceeding the standard rental deposit out of the deposit under the above contract is null and void. In response, the Plaintiff filed a preliminary counterclaim claiming the difference of rent in the appellate court (Seoul High Court 2010Na1461, 60525, 12109

D. On February 23, 2011, the appellate court rendered a judgment ordering the Plaintiff to pay the rent, namely, the rent, calculated at the rate of KRW 316,00 per month, equivalent to the difference in the rental deposit, from December 25, 2010 to the time when the Plaintiff delivers the instant house, and the judgment became final and conclusive on June 29, 201.

E. On February 25, 2011, the Plaintiff deposited the difference in rental deposit and its delay damages with the Defendant as the principal deposit. However, even after the said judgment became final and conclusive, the Defendant paid only KRW 593,00 as the monthly rent on the last day of each month and did not pay KRW 316,00, which is the difference between the standard rent and the standard rent. On December 23, 201, the Plaintiff terminated the instant lease on the ground that the Defendant’s delayed payment of rent was due to the delayed payment of rent.

5. We examine the above facts in light of the legal principles as seen earlier.

In the instant lease agreement, the Plaintiff and the Defendant set the rental deposit and the rental fee at the mutually converted amount of the standard rental deposit and the standard rental fee, but violated the Rental Housing Act and subordinate statutes, which are effective regulations without the consent of the lessee under the relevant statutes, the instant lease agreement shall be null

However, considering the developments leading up to the conclusion of the instant lease agreement or the overall contents of the relevant contract, which can be known by the record, it is reasonable to deem that the Plaintiff and the Defendant concluded a lease agreement to apply the rental deposit and the standard rent, which are the maximum statutory amount, if they knew that the lease agreement becomes null and void due to mutual conversion under the circumstances at the time of the contract. Therefore, the instant lease agreement shall be deemed valid as a lease agreement under such terms and conditions.

Therefore, the Defendant is obligated to pay KRW 909,00 per month, which is the amount of standard monthly rent, according to the terms and conditions of the contract, which has been maintained by the conversion of the original lease agreement into null and void. Nevertheless, the failure to pay KRW 316,00 per month constitutes a delay in payment of monthly rent. Moreover, it is clear that the Plaintiff’s delay exceeds the rent for three months at the time of termination of the instant lease agreement on December 23, 201, including the failure to pay monthly rent from June to November 201, which is the date the said judgment became final and conclusive, and it is apparent that the amount in arrears exceeds the rent for three months at the time of termination of the instant lease agreement on December 23, 2011. Therefore, the Plaintiff should be deemed to be able to terminate the instant lease agreement, as stipulated in Article 10(1)4 of the said Standard Rental Agreement, unless there is any other special circumstance.

Nevertheless, the lower court determined that the Plaintiff’s declaration of termination of the instant lease agreement was null and void on the grounds as indicated in its holding, on the following grounds: (a) the instant lease agreement continues to remain in force on the condition of leasing “standard rental deposit and contractual rent; and (b) the Defendant’s obligation to pay the difference between the standard rent and contractual rent is not only the obligation to return unjust enrichment but also the obligation to return unjust enrichment; (c) so, even if the Defendant did not pay the difference, the Plaintiff cannot terminate the instant lease agreement. In so determining, the lower court erred by misapprehending the legal doctrine on conversion of invalidation and the grounds for termination of the lease agreement on rental housing, thereby adversely affecting the conclusion of the judgment.

In addition, the lower court’s aforementioned determination goes against the res judicata effect of the final and conclusive judgment, insofar as the final and conclusive judgment ordering the Defendant to pay the amount calculated at the rate of KRW 316,00 per month from December 25, 2010 to the time of delivering the instant house, the lower court pointed out that the final and conclusive judgment goes against res judicata effect.

6. Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices, except for a separate opinion by Justice Kim Shin, Justice Kim So-young, Justice Kwon Soon-il, and Justice Park Sang-ok, and a concurrence with the Majority by Justice Park Poe-dae

7. Separate opinion by Justice Kim Shin, Justice Kim So-young, Justice Kwon Soon-il, and Justice Park Sang-ok is as follows.

A. The summary of the Concurring Opinion is that, in the lease contract for publicly constructed rental housing, the lessor unilaterally convert the rental deposit and rent into one another without the consent of the lessee under the method prescribed by the Rental Housing Act and the rental deposit exceeds the standard rental deposit, and in the event that the lessee violates the Rental Housing Act and subordinate statutes, which are effective provisions by setting the amount below the standard rental deposit, the rental deposit under the lease contract shall be null and void within the extent exceeding the standard rental deposit, or the remainder of the lease contract shall not be null and void, and the relevant lease contract

(1) Article 137 of the Civil Act provides, “If a part of a legal act is null and void, the whole part shall be null and void. However, if it is deemed that a juristic act has been committed even if there is no nullification part, the remaining part shall not be null and void.” Since the above provision is a voluntary provision that applies in the area controlled by the principle of self-government of intent, in cases where a part of a juristic act is null and void due to its violation of the mandatory law, the part shall be null and void if the individual law provides for the effect of partial invalidation, and if there is a provision that affects the validity of the remaining part, it shall be followed, and if there is no such provision, Article 137 of the Civil Act shall apply, in principle, but if the remaining part is null and void in light of the relevant mandatory law and the legislative purport of the law with the said provision, it shall not be deemed null and void (see, e.g., Supreme Court Decisions 2003Da1601, Jun. 11, 2004; 2018Da3518, etc.).

If a part of a rental contract for a publicly constructed rental house becomes null and void due to its violation of the mandatory law, if the whole lease contract becomes null and void, the majority opinion points out that the tenant who won the winning through certain procedures from among the homeless will be removed from the rental apartment, and the legislative intent of the relevant law that intends to supply a rental house at reasonable prices to the homeless people will be avoided, the standard rental deposit provision will be dance, and the legislative purpose of the relevant law that protects the homeless lessee who is the socially and economically weak (see Supreme Court Decision 2010Da23425, supra). Therefore, in the instant lease contract, the lease deposit unilaterally prescribed by the law of this case is null and void within the extent that it exceeds the standard rental deposit, and the remainder of the lease contract is valid, and such interpretation also accords with the legislative intent of the Rental Housing Act and subordinate statutes.

(2) Article 618 of the Civil Act provides, “The lease becomes effective when one of the parties agrees to allow the other party to use and take profits from an object, and the other party agrees to pay rent for it.” The core content of the lease is the use and profit-making of the object of the lessee and the payment of rent for it. However, in the case of a real estate lease, there is a problem that the lessee’s right of lease should be protected due to its importance, while it is ordinarily necessary to secure a lessor’s right of lease and to secure a claim for rent of the leased object as well as a claim for damages arising from damage to the object, since the duration of the lease extends over a long period. From this perspective, the lease of real estate is commonly accompanied by the number of deposits, but there is no provision in the Civil Act.

According to the Supreme Court precedents, a security deposit in a building lease is money or other valuables to secure a lessee’s claim under a lease agreement, such as a claim for rent for the lease period and a damage claim incurred until the lessee performs the duty of delivery of the building (see, e.g., Supreme Court Decisions 87Da68, Jun. 9, 1987; 9Da50729, Dec. 7, 199; 2015Da23020, Jul. 27, 2016). As such, a security deposit contract in a building lease is an agreement to deliver money or other valuables to secure a lessee’s obligation, such as rent and damages, but it is separate from a lease agreement itself, and thus, it does not constitute an indivisible relationship. Therefore, the lease agreement becomes null and void or void as it becomes null and void due to the remainder of a legal act or a lease agreement in excess of the upper limit prescribed by statutes.

In light of foreign legislation, the German Civil Act provides, “When a lessee is required to pay a deposit for the performance of his/her duties in a lease of a house, the deposit received shall not exceed three times the monthly rent except in certain cases. In the lease of a house, if the lessee has paid the deposit to the lessor, the lessor shall separate the deposit from his/her general property and hear the deposit from the bank deposit incurred by the lessee. Interest shall accrue to the lessee.” The interest shall be increased upon the occurrence of the interest.” The French Act provides, “Where the deposit is determined to guarantee the performance of the lessee’s obligations in relation to the deposit for a residential building, etc., the amount of the deposit shall not exceed one month’s rent. No interest shall accrue for the lessee and any alteration shall be made during the renewed lease period.” In such legislation, even if the excess portion is null and void, the lessor may not demand the remainder of the lease or any increase in rent equivalent to the excess portion.”

(3) The legal nature of the standard rental deposit and standard rental fee publicly announced by the Minister of Construction and Transportation under the Rental Housing Act and the rental contract for public rental housing is merely the “limited” of the rental deposit and rental fee determined by the lessor notwithstanding the term “rental,” and does not purport to conclude a lease contract on the terms of the standard rental deposit and rental fee.

Under the Rental Housing Act and subordinate statutes, public rental housing means (1) rental housing constructed with the finance of the State or a local government, (2) rental housing constructed with the funding of the Housing and Urban Fund under the Housing and Urban Fund Act, and (3) rental housing constructed with the approval of a project plan pursuant to Article 16 of the Housing Act on a housing site created by a public project. However, Article 12 of the former Enforcement Decree of the Rental Housing Act provides that (1) the initial rental deposit and rent for public rental housing under Article 16 of the Housing Act shall not exceed the standard rental deposit and rent determined and publicly notified by the Minister of Construction and Transportation; (2) In calculating the standard rental deposit and rent, the cost of construction for rental housing and its appurtenant facilities, the rate of financing and National Housing Fund support, guarantee deposit and rent for the surrounding area of the rental housing concerned (limited to the lessee’s share), depreciation costs, expenses for repair and maintenance, interest on the National Housing Fund loan, allowance for bad debts and taxes, etc.; and (3) the first rental deposit for public rental housing constructed by the State, the Korea National Housing Corporation, or a local public corporation shall not exceed the amount equivalent to rental deposit.

According to the above regulations, a rental housing statute stipulates that a lessor and lessee of a publicly constructed rental house will determine the terms and conditions of rental according to the supply and demand in a rental housing market within the limits of the standard rental deposit and standard rent determined and publicly notified by the Minister of Construction and Transportation, and it does not mean that the terms and conditions of rental are to be determined by the upper limit prescribed by the Rental Housing Act

(4) Article 138 of the Civil Act provides, “If a null and void juristic act satisfies the requirements for another juristic act and it is deemed that if the parties had known the invalidation, they would have intended to engage in another juristic act, the said juristic act shall have the effect as the other juristic act.” The grounds for recognizing “the conversion of a null and void act” under the foregoing provision are “the parties’ intent to engage in another juristic act if they had known the invalidation thereof.” Such intent of the parties is a assumptive intent, and such intent of the parties is bound to be determined in light of the principle of trust and good faith in light of transaction practices in cases where the parties were assumed to be under the specific circumstances such as at the time of the juristic act. However, the court should take into account the assumptive intent so that it does not unreasonably compel the legal effect which the parties would not desire to engage in under the name of the contract (see Supreme Court Decision 2009Da5030

The Majority Opinion states that, in a case where a lessor illegally converted a rental deposit and a standard rental deposit from a rental contract for publicly constructed rental housing to mutually convert the rental deposit and the standard rental deposit exceeds the standard rental deposit, the lease contract is null and void as it violates the Rental Housing Act and subordinate statutes, which is an effective provision. However, in light of the party’s assumptive intent, the lease contract shall be deemed null and void as the lease contract under the terms and conditions of the standard rental deposit and the standard rental fee

However, as seen earlier, even if there are grounds for partial invalidation in the instant lease agreement, the said contract is null and void within the extent exceeding the standard rental deposit, and the remainder of the instant lease agreement is not deemed null and void. Furthermore, it is difficult to readily conclude that a lessor and lessee intended to enter into a lease agreement with the upper limit of the lease terms and conditions in a lease agreement for publicly constructed rental housing.

In the rental agreement for publicly constructed rental housing, a lessee can only choose whether to enter into a contract under the standard rental agreement presented by a rental business operator and does not have the right to decide the terms and conditions of the contract. In this case, in light of the fact that a lessee does not have an explanation of the standard rental deposit, standard rental deposit, mutual conversion, etc. at the time of entering into a contract from a rental business operator, or that there is no receipt of a receipt from a rental business operator to enter into a lease contract under the standard rental deposit and standard rental deposit and rent, it is difficult to deem that the lessee has the aforementioned assumptive intent. In light of the legislative intent of the Rental Housing Act, ensuring the stability of national housing life by preventing a rental business operator from voluntarily setting a rental deposit and

(5) As indicated in the Concurring Opinion, the excess portion of the standard rental deposit in violation of the mandatory law shall be deemed null and void, and a lease contract shall be deemed to have been concluded on the condition that the standard rental deposit and the rent stipulated in the instant lease agreement are leased. As such, the assertion that this would be contrary to the principle of equity is difficult to accept as the Majority Opinion concerns.

In this case, deeming that the standard rental deposit, which is the upper limit of deposit under the laws and regulations on rental agreements for publicly constructed rental housing, and the rental contract under the rent determined by the parties, are only attributable to determining rental deposit in excess of the standard rental deposit in violation of the laws and regulations. Even if interpreted as the separate opinion, as long as it can be newly determined by exercising a lessee’s right to demand an increase or decrease in rent, etc. under Article 14(2) of the former Rental Housing Act or Article 7 of the Housing Lease Protection Act, such interpretation cannot be deemed as unilaterally disadvantageous to rental business operators.

Rather, as the majority opinion states, if the instant lease agreement remains effective as a lease agreement on the condition of a rental deposit and standard rent from the beginning to the beginning, and as a result, the lessee is obliged to pay rent to the rental business operator in proportion to the standard rent, the lessee is retroactively deemed to have failed to perform the duty to pay rent in full due to the lessor’s circumstances, such as illegal mutual conversion, even though the lessee has faithfully paid the rent agreed under the instant lease agreement so far, and thus, the lessee is retroactively deemed to have failed to perform the duty to pay rent in full due to the lessor’s reason of the illegal mutual conversion. This would not only undermine the stability of legal relations, but also go against the legislative intent of the Rental Housing Act, which is to protect lessee.

B. On May 23, 2006, the lower court acknowledged that the Defendant concluded the instant lease agreement with the Plaintiff, a rental business operator, and the instant publicly constructed rental house under Article 16 of the Housing Act, with a rental deposit of KRW 246,940,00 in excess of the standard rental deposit, and with a rent of KRW 593,00 per month below the standard rental deposit, and that the Defendant paid KRW 593,00 per month to the Plaintiff as the rental fee and did not pay KRW 316,00 per month, the difference between the standard rental fee and the contract rental fee, and determined that the Plaintiff cannot terminate the instant lease agreement on the ground of the overdue rent, even if the Defendant did not pay the rental fee.

The above determination by the court below is justifiable as it is in accordance with the legal principles as seen earlier. As pointed out by the majority opinion, the judgment of the court below is to be reversed because it omitted the deliberation and judgment as to whether the final and conclusive judgment, which is the matter of ex officio investigation, goes against the res judicata. However, the court below to which the case was remanded, after examining not only the developments leading up to the conclusion and termination of the lease contract of this case, but also all the circumstances surrounding the building delivery lawsuit of this case, and points out that it is necessary to examine whether

C. We agree with the majority opinion on the conclusion that the judgment of the court below should be reversed, but we express our separate opinion as seen above, since the reasons for reversal are different.

8. Opinion concurring with the Majority Opinion by Justice Park Poe-dae, Justice Park Poe-young, and Justice Kim Jae-hyung

A. In a case where a part of the contents of a juristic act is null and void because it is in violation of a mandatory law and thus null and void, the issue of whether the invalidity of the part affects the validity and invalidation of the remaining parts shall be determined by the parties’ assumptive intent. The assumptive intent in this context is that the parties would have expressed their intent to have known of the invalidation, and where it is possible to divide the contents of the juristic act, if the contents of the juristic act are deemed to have engaged in the juristic act only in the remaining parts even if there is no void portion, it is recognized as the legal act in the remainder (proviso of Article 137 of the Civil Act). On the other hand, in a case where it is impossible to divide the contents of the juristic act or it is difficult to deem that the juristic act with only the remaining parts was committed, in principle, the said juristic act shall be deemed null and void, and if the parties were aware of the invalidation, it shall

As noted in the Supreme Court precedents cited in the Concurring Opinion (see, e.g., Supreme Court Decision 2003Da1601, supra), invalidation of part of a juristic act is deemed null and void due to its violation of compulsory law and its legislative intent, if deemed contrary to compulsory law and its legislative intent, the remaining part cannot be deemed null and void. However, even in such a case, the principle of autonomy of the parties’ intent should be respected to the extent that it does not conflict with mandatory law and its legislative intent. Notwithstanding the fact that there is a mutually consistent assumptive intent between both parties, deeming it effective only as a juristic act with only the remainder after subtracting the invalidation portion from the original agreement is contrary to the fundamental spirit of the parties’ autonomy. Even if it is necessary to realize the legislative intent of mandatory law, it would be unreasonable to deny the validity of the part contrary to mandatory law and to maintain the contract’s effect on the basis of the remainder of the parties’ rational intent, and thus, it should not be deemed null and void even in a case where the parties’ intent is deemed null and void as a whole.

In this case, the entirety of a lease contract shall not be deemed null and void in order to prevent any consequences contrary to the legislative intent of the mandatory law. The separate opinion promptly states that the remainder after deducting only the portion exceeding the standard rental deposit from the initial lease contract relationship, i.e., the standard rental deposit and the initial contract rental fees, should continue to exist as a lease contract relationship under the condition of lease. In such a case, the parties would have known that part of the contract was null and void in the situation at the time of the lease contract. Examining the developments leading up to the conclusion of the lease contract in this case and the legislative intent of the relevant mandatory law on such premise, it is difficult to deem that the original and the Defendant’s assumptive intent was consistent with the conclusion of the contract under the condition of the standard rental deposit and the contract under the conditions of the standard rental deposit, namely, the terms and conditions before mutual conversion, in terms of equity between the parties to the lease contract, and thus, the lessee would not be deemed null and void as well as the contractual intent of the rental contract in this case.

B. Article 138 of the Civil Act does not limit that a null and void juristic act should be a different kind of juristic act. Therefore, there is no reason to deem that a null and void lease agreement should not be converted into another lease agreement (see, e.g., Supreme Court Decision 2009Da50308, supra). Moreover, even in a legal concept, in a case where a separate juristic act constitutes an economic and factual integration by combining it with a principal relationship with a party’s intent, even if it is a separate juristic act, it shall be deemed that the legal doctrine on conversion of null and void act into the whole combined juristic act can be applied (see, e.g., Supreme Court Decision 93Da31191, Sept. 9, 194). If a party’s assumptive intent is examined by an individual juristic act within a legal meaning and decided whether it is converted into another juristic act, it may be contrary to the genuine intent that the party would have been combined with

There is no doubt as to whether a lease contract and a lease deposit agreement can be readily concluded as a separate legal act. In particular, it is more meaningful to simply provide security for rent, etc. because a lease deposit is considerably higher than a monthly rent, etc., and the proceeds from the use of funds, such as interest, can be deemed as constituting a part of the rent. This is also different from our situation from our country. In this case, the standard lease deposit amount of KRW 137,191,000 is the amount of KRW 90,000 per month standard rent. It cannot be deemed as only to secure the rent claim or the damage claim during the lease term. Even if the lease contract and the lease deposit agreement are deemed as a separate legal concept, in light of the structure of the rent of the instant lease, etc. of the instant lease, the two contracts cannot be deemed as being in an economic and factual relationship. If a part of the lease deposit agreement is null and void, the premise that the two parties’ legal principles on partial invalidation or invalidation of the lease contract and the premise that the two parties’ legal principles on conversion of rent are null and void should be determined in accordance with the conclusion.

C. The separate opinion points out that the standard rental deposit and the standard rental fee stipulated in the Rental Housing Act are statutory limits. Therefore, it is naturally possible to determine the terms and conditions of lease at a price below the standard rental deposit and the standard rental fee in an individual contract.

However, the assumptive intent, which forms the basis for conversion of invalidation, refers to an effective intent deemed to have been intended in light of transaction practice and the principle of trust and good faith, if the parties were to know that the juristic act was null and void at that time. Therefore, whether it can be effective as another legal act by conversion of invalidation ought to be determined by recognizing the assumptive intent of the parties to the legal act in such circumstances, on the premise of specific circumstances at the time of such juristic act. The parties’ intent cannot be inferred on the basis of the virtual reality, regardless of the actual situation.

The terms and conditions of the rental of publicly constructed rental housing are more favorable to the lessee than those of other private housing units. In order to promote the construction of rental housing and ensure the stability of national housing conditions, the Rental Housing Act strictly limits rental deposit, rent, lease period, conversion of rental housing into lots and the standards for the calculation of prices, etc. instead of providing various support to rental business operators, such as lending the National Housing Fund at a long-term low interest rate, etc. In particular, the rental business operators are also regulated by setting the standards, such as the requirements for registration of rental business operators. In particular, the upper limit of rental deposit and rent is set, and the amount is considerably lower than the rental fee of general private housing, and the rental business operator’s registration is considerably lower than the rental fee of general private housing, and there are substantial benefits such as the guarantee for the long-term conversion into lots. Therefore, even if the number of applicants for rental housing exceeds the supply quantity, it is difficult to find

Upon examining the record, the circumstances are also the same in the instant lease agreement. In other words, ① the rental deposit and rent under the instant lease agreement are based on the rental deposit and rent under the statutory standard terms and conditions, and were calculated by mutual conversion by applying 3.45% per annum, which is the interest rate of one-year term deposit under the one-year term deposit set forth in the notification of the Ministry of Construction and Transportation. ② The Plaintiff recruited the applicants through a public announcement of occupants, and the applicant selected the occupants by lot in excess of the supply quantity, and the Defendant was also selected through the process. ③ When concluding the instant lease agreement with the Defendant, the Plaintiff agreed to sell the leased housing after the lapse of the ten-year mandatory lease period, and sell the housing to the Defendant, which is the lessee. ④ The instant lease agreement does not specify the specific amount of the standard rental deposit and standard rent, which is the basis for calculation of mutual conversion, but is stated in the column of the rental deposit and rent, so it can be seen that the amount converted

In light of the above circumstances and terms and conditions of the contract before and after the conclusion of the contract, the Defendant was aware or could have known that the terms and conditions of the lease contract in this case were set on the basis of the standard rental deposit and standard rent, and that the rent was set on the basis of the mutual conversion in a low manner. If the Defendant knew at that time that the rental deposit agreement was null and void due to the mutual conversion, it is very natural to recognize that the terms and conditions of the lease prior to the mutual conversion, namely, the standard rental deposit and standard rent terms and conditions, would have been willing to enter into a contract. In short, in short, in light of the provisions of the Rental Housing Act and subordinate statutes, it cannot be said that the terms and conditions of the lease would have been set on the basis of the maximum standard rent, etc., in view of the specific reality, which serves as the basis of the parties’ home intention, it is clear that the terms

On the other hand, the standard rent is calculated by adding the depreciation costs, repair and maintenance costs, fire insurance premiums, taxes and public charges, the Fund, and self-funded interest for the relevant rental house. Therefore, it is difficult to confirm the amount easily. However, as the assumptive intent was recognized when the lessee was aware of the terms and conditions of the relevant contract at the time of the lease contract, even if the lessee did not know of the details of the standard rent and the calculation of mutual conversion at the time of the conclusion of the contract, it does not hinder the recognition of conversion of invalidation.

In addition, as the assumptive intention recognizes the parties' reasonable intention according to transaction practices based on the circumstances at the time of the conclusion of the contract, even if the defendant refuses the payment of standard rent after the conclusion of the lease contract in this case, it is no obstacle to recognizing the assumptive intention for conversion of invalidation.

D. As pointed out in the Concurring Opinion, recognizing the conversion of invalidation by the intention of assumptive effect should not result in a violation of the purport of the law with the aim of stabilizing the residence of homeless people. However, as stated in the Majority Opinion, the legislative intent of the law should not be ruled out on the basis of recognizing the conversion of the lease relationship under the terms of the standard rental deposit and the standard rent.

First of all, even according to the majority opinion, it is not sufficient to deny the validity of a lease contract that a homeless ordinary person becomes a lessee, or that the lessee can easily withdraw from a rental apartment. However, it is only recognized the terms and conditions differently from the agreement, and the terms and conditions of the lease do not deviate from the legal scope of the rental housing statutes.

According to the Majority Opinion, even if the process of a conversion into the terms of the standard rent is deemed null and void, the lessee shall not be placed at an unreasonable disadvantage. If a mutual conversion is deemed null and void, the rental business operator shall refund the difference between the rental deposit and the lessee shall pay the difference between the standard rent and the agreed rent, and the lessee shall be deemed as having the relationship of simultaneous performance. Therefore, even if the lessee is not paid the difference between the rental business operator and the rental business operator before receiving the refund of the difference of the rental deposit or the payment for the performance thereof, the lessee shall not be deemed to have delayed the rent. Furthermore, in cases where there are circumstances where the difference between the parties in dispute regarding the elements or amount for calculating the standard rent and the rent that the lessee has to pay to the rental business operator is determined through legal proceedings, etc., even if the difference between the parties is not paid until the determined period, the cause for the lessee’s failure to pay the difference is not recognized

Furthermore, the Majority Opinion is that the requirements for termination under the Rental Housing Act and the Civil Act are more strengthened than the general real estate lease to which Article 640 of the Civil Act applies in the event a rental business operator terminates due to the default of rent by the lessee. In other words, according to the Rental Housing Act and the Rental Housing Act and the Act and subordinate statutes, it is possible to terminate the rent only when the rent is in arrears for at least three consecutive months, and the institutional devices

However, in the instant case, the appellate court rendered a ruling on February 23, 201, ordering the Plaintiff and the Defendant to pay the difference between the rental deposit and the rent. On February 25, 2011, the Plaintiff, immediately following the said ruling, deposited the amount of the judgment with the Defendant as a depositee. However, on March 29, 2011, the Defendant received the said deposit, and on June 29, 2011, continued to pay only the rent under the initial contract after the dismissal of the final appeal became final and conclusive, and did not pay the difference as much as the rent. Accordingly, the Plaintiff urged the payment of the difference of rent four times from September 23, 201 to December 19, 2011, but the Defendant still failed to pay the difference to the Plaintiff, notified the termination of the instant lease agreement, and notified the Plaintiff of the termination of the said contract. The Defendant filed a lawsuit against the Plaintiff on December 23, 2015.

In light of such factual basis and the legal principles as seen earlier, in a case where a trade name conversion becomes null and void, it cannot be said that a lessee is clearly unfavorable even if it is deemed that a rental agreement is converted into a standard terms and conditions. However, in this case, even though the Defendant received a judgment ordering the payment of rent difference, the Defendant has failed to perform his/her duty and has been terminated by the Plaintiff. It cannot be said that it accords with equity or justice to prevent the rental business operator from exercising his/her right against a party who did not perform his/her duty with respect to all legal protective devices generally conferred upon the lessee of the publicly constructed rental house.

E. The cause of the instant dispute arises from the failure of the Plaintiff, a rental business entity, to undergo due process of mutual conversion. However, the compensation for mistakes is justified to the extent that it is reasonable.

Concurring Opinion, the proviso of Article 137 of the Civil Act is applied on the premise that a lessee is deemed to have such as a contractual intent, taking into account the legislative intent of the mandatory law (see Supreme Court Decision 2011Da9068, Apr. 26, 2013). However, even in such a case, the agreement between both parties should be recognized. However, it is very doubtful whether the Plaintiff, who is a rental business entity, accepts the conclusion of the contract even if he/she receives only the standard rent of KRW 909,00,00, 593,000, which is 65%, instead of the standard rent of KRW 909,00,000. Concurring Opinion, the right to demand an increase or decrease in the rent under the Housing Lease Protection Act may be exercised, and thus, it is difficult to deem that the demand for increase in the rent is contrary to equity. However, even if it does not exceed 5% each year and it is difficult for the parties to a legal act within the reasonable scope of the standard terms of contract.

We express our Concurrence with the Majority Opinion.

Justices Lee Sang-hoon (Presiding Justice)