[1] Where a foreigner or a foreign nationality Korean has filed a foreigner registration, a report on the change of his/her place of residence, a report on the change of his/her place of residence, and a report on the change of his/her place of residence under the Immigration Control Act or the Act on the Immigration and Legal Status of Overseas Koreans, whether the legal effect of the same as the resident registration

[2] Where a Korean national residing abroad reported his/her domicile in accordance with Article 6 of the former Act on the Immigration and Legal Status of Overseas Koreans, whether Article 3(1) of the Housing Lease Protection Act recognizes the legal effect of the same as the resident registration stipulated by the requirements for setting up against a house lease under Article 3(1) of the Housing Lease Protection Act (affirmative), and in such case, whether the report shall be deemed to be

[1] The Immigration Control Act amended by Act No. 6745 of Dec. 5, 2002, thereby newly establishing Article 88-2 for the convenience of foreigners. According to the above, a resident registration certificate and a certified copy or abstract of the resident registration certificate in various procedures, business relations, etc., as stipulated in the law, are substituted by a foreigner registration certificate and a certified copy or abstract of the resident registration certificate (Paragraph 1), and a report on change of the foreigner registration and the place of stay (Paragraph 2) is substituted by a report on change of the foreigner registration and the place of stay (Article 3(1) of the Housing Lease Protection Act (hereinafter “Housing Lease Protection Act”). Therefore, a foreigner or a foreign nationality Korean who completed the foreigner registration and the change of the place of

As can be seen, the purport of the Immigration Control Act deeming that a foreigner or a foreign nationality Korean filed a report on the foreigner registration and the change of his/her place of stay under the Resident Registration Act is to provide legal protection equivalent to that of the resident registration if a foreigner or a foreign nationality Korean files a report on the foreigner registration and the change of his/her place of stay in lieu of being unable to file a resident registration under the Resident Registration Act. This, in particular, gives the effect of giving the lessee who completed the delivery of a house and the change of his/

Meanwhile, according to the Act on the Immigration and Legal Status of Overseas Koreans (hereinafter “Overseas Act”), a foreign nationality Korean who reported the domestic place of residence or the change of his/her place of residence pursuant to the Immigration Control Act is deemed to have filed a foreigner registration and the change of his/her place of residence pursuant to the Immigration Control Act (Article 10(4)). Therefore, Article 88-2(2) of the Immigration Control Act applies to a foreign nationality Korean who reported the domestic place of residence. As such, as seen earlier, a foreign nationality Korean who reported the domestic place of residence and a report on the change of residence that was completed by a foreign nationality Korean pursuant to the Overseas Koreans Act is deemed to have the same

[2] At the time of the enforcement of the former Act on the Immigration and Legal Status of Overseas Koreans (amended by Act No. 12593, May 20, 2014; hereinafter “former Act on Overseas Koreans”), there was no explicit provision that allows overseas Koreans to report their domestic domicile under Article 6 of the Housing Lease Protection Act (hereinafter “Housing Lease Act”) to be treated together with the resident registration prescribed by Article 3(1) of the said Act. Moreover, since overseas Koreans are not foreign nationality Koreans, Article 10(4) of the Act on the Immigration and Legal Status of Overseas Koreans is not applicable.

Comparing with Article 88-2(2) of the Immigration Control Act, the provision on the domestic domicile report of Korean nationals residing abroad as above, there is a gap in the law as to whether it can substitute the resident registration and move-in report with the domestic domicile report and move-in report of Korean nationals residing abroad.

Article 88-2 (2) of the former Immigration Control Act does not expressly provide that the report of domestic domicile and the report of domestic domicile transfer of a Korean national residing abroad shall substitute the resident registration and the move-in report. However, Article 88-2 (2) of the Immigration Control Act shall apply mutatis mutandis by applying Article 88-2 (2) of the same Act to the former Overseas Koreans Act, and the report of domestic domicile and the move-in report, which have been completed by a Korean national pursuant to Article 6 of the former Overseas Koreans Act, shall replace the resident registration and move-in report as well as the report of foreign nationality Koreans. Therefore, the domestic domicile report of a Korean national residing abroad shall be recognized in Article 3 (1) of the Housing Lease Act

[1] Articles 2(2) and 6(2) of the Constitution of the Republic of Korea; Article 88-2(2) of the Immigration Control Act; Article 3(1) and (2) of the Housing Lease Protection Act; Article 6 of the former Act on the Immigration and Legal Status of Overseas Koreans (Amended by Act No. 12593, May 20, 2014); Articles 2, 9, and 10(4) of the Act on the Immigration and Legal Status of Overseas Koreans; Article 6(1)3 of the Resident Registration Act / [2] Articles 2(2) and 6(2) of the Constitution of the Republic of Korea; Article 88-2(2) of the Immigration Control Act; Article 3(1) and (2) of the Housing Lease Protection Act; Article 6(1) of the former Act on the Immigration and Legal Status of Overseas Koreans; Article 3(2) of the former Act on the Immigration and Legal Status of Overseas Koreans; Article 6(1) and (3) of the Resident Registration Act

[1] Supreme Court Decision 2014Da218030, 218047 Decided October 13, 2016 (Gong2016Ha, 1658) Supreme Court Decision 2015Da14136 Decided October 13, 2016

Prior Industry Development Co., Ltd. (Law Firm Open, Attorneys Jeong Woo-jin et al., Counsel for the defendant-appellant)

Defendant (Law Firm Jung-dong, Attorneys Lee Jong-in et al., Counsel for the defendant-appellant)

Incheon District Court Decision 2015Na53674 Decided November 25, 2015

The judgment below is reversed, and the case is remanded to the Incheon District Court.

The grounds of appeal are examined.

1. Issues;

On September 27, 2013, the Defendant who is a Korean national residing abroad (Korean national residing abroad) leased a house in Korea and completed a report on the relocation of his/her residence pursuant to Article 6 of the former Act on the Immigration and Legal Status of Overseas Koreans (amended by Act No. 12593, May 20, 2014; hereinafter “former Overseas Koreans Act”). In such cases, the issue of this case is whether the report on the domestic domicile or the relocation of his/her residence can be seen as the same as the resident registration or the move-in report prescribed by Article 3(1) of the Housing Lease Protection Act (hereinafter “Housing Lease Protection Act”).

First of all, after examining the resident registration and the domestic domicile report system of Korean nationals residing abroad, it is necessary to determine whether the report of domestic residence or the change of residence of Korean nationals residing abroad can be seen as the requisite for counterclaim under the Housing Lease Act by applying Article 88-2 (2) of the Immigration Control Act by analogy.

2. Resident registration and domestic domicile reporting system for Korean nationals residing abroad;

A. Article 2 of the Act on the Immigration and Legal Status of Overseas Koreans (hereinafter “overseas Koreans Act”) separates overseas Koreans into “Korean nationals residing abroad” and “foreign nationality Koreans. Korean nationals residing in a foreign country for the purpose of acquiring a permanent residence of a foreign country as a national of the Republic of Korea (Article 2 subparag. 1) and foreign nationality Koreans are “persons prescribed by Presidential Decree from among those who have held a nationality of the Republic of Korea or who have acquired a foreign nationality as their lineal descendants (Article 2 subparag. 2).” Meanwhile, the Immigration Control Act defines “foreigners” as “persons who have no nationality of the Republic of Korea” (Article 2 subparag. 2).

B. The resident registration system and the domestic domicile reporting system of Korean nationals abroad have undergone the following changes:

(1) According to the main sentence of Article 6(1) of the former Resident Registration Act (amended by Act No. 4314, Jan. 14, 1991), the head of a Si/Eup/Myeon has to register a person who has an address or domicile (hereinafter “resident”) within his/her jurisdiction for the purpose of residing for not less than 30 days (However, the proviso of Article 6(1) is an exception to a person who stays in the Republic of Korea on official duties of a foreign soldier, diplomat or consul stationed in the Republic of Korea, his/her officer or consul, family member, or a foreign government (the proviso of Article 6(1))). Therefore, even if a person who has a nationality of the Republic of Korea has an address in a foreign country but has a domicile in the Republic of

Article 6(3) of the Resident Registration Act was amended by Act No. 4314 on January 14, 1991 and excluded emigrants who temporarily returned to the Republic of Korea from persons eligible for resident registration (Article 6(3) of the former Enforcement Decree of the Resident Registration Act). In other words, overseas emigrants under Article 2 of the Emigration Act were unable to carry out resident registration unless they renounce their emigration, as prescribed by Presidential Decree (Article 6(3) of the former Resident Registration Act (amended by Act No. 12279, Jan. 21, 2014; hereinafter “former Resident Registration Act”)). Also, Article 19 of the former Resident Registration Act and Article 26 of the former Enforcement Decree of the Resident Registration Act (amended by Presidential Decree No. 25956, Dec. 31, 2014) provides that overseas Koreans who have returned to the Republic of Korea with their resident registration shall cancel their resident registration (Article 6(3) of the former Resident Registration Act).

(2) Under the Overseas Koreans Act enacted on September 2, 199, a new domestic domicile report system was established. This Act established a domestic residence in the Republic of Korea when necessary to apply the Overseas Koreans Act and foreign nationality Koreans who entered the Republic of Korea as overseas Koreans and overseas Koreans who entered the Republic of Korea as overseas Koreans, and allowed the head of the Immigration Office or the head of the branch office of the Immigration Office to report their domestic domicile (Article 6(1)). Korean nationals abroad and foreign nationality Koreans who reported their domestic domicile to be granted the domestic domicile report number in lieu of their resident registration numbers and issued the domestic domicile report card in lieu of their resident registration numbers (Article 7(1)) (Article 9).

(3) Following the amendment of the Resident Registration Act by Act No. 12279, Jan. 21, 2014, the Resident Registration Act abolished the resident registration system of overseas Koreans and introduced the resident registration system of overseas Koreans (see Article 6(1)3). This is to ensure that overseas Koreans do not cause inconvenience to their lives in the Republic of Korea and enhance the sense of belonging to the nationals of the Republic of Korea. In addition, as the overseas Koreans Act was amended by Act No. 12593, May 20, 2014, the Korean resident registration system was abolished, and the amended Act was enforced on January 22, 2015, along with the amended Resident Registration Act.

3. Application of Article 88-2 (2) of the Immigration Control Act to a report on domestic domicile and change of residence of Korean nationals residing abroad by analogy.

A. As the Immigration Control Act was amended by Act No. 6745, Dec. 5, 2002, Article 88-2 was newly established for the convenience of foreigners. According to the foregoing, a resident registration certificate and a certified copy or abstract of the resident registration certificate in various procedures, business relations, etc., as prescribed by the relevant statutes, etc., substitution of the resident registration certificate and a certified copy or abstract of the resident registration certificate in lieu of the foreigner registration certificate and a certified copy or abstract of the resident registration certificate (Paragraph 1). Therefore, a foreigner or a foreign nationality Korean who completed a foreigner registration and a change of his/her stay place pursuant to the Immigration Control Act is recognized as having the same legal effect as the resident registration prescribed by Article 3(1) of the Housing Lease Act as the requisite for setting up against a housing lease (see, e.g., Supreme Court Decision 2014Da218030, 21

As can be seen, the purport of the Immigration Control Act deeming that a foreigner or a foreign nationality Korean filed a report on the foreigner registration and the change of his/her place of stay under the Resident Registration Act is to provide legal protection equivalent to that of the resident registration if a foreigner or a foreign nationality Korean files a report on the foreigner registration and the change of his/her place of stay in lieu of being unable to file a resident registration under the Resident Registration Act. This, in particular, gives the effect of giving the lessee who completed the delivery of a house and the resident registration in accordance with the Housing Lease Act (see Supreme Court Decision 2015Da14136, Oct. 13, 2016).

B. A Korean national residing abroad or a foreign nationality Korean who entered the Republic of Korea as a result of status of sojourn as overseas Korean could equally report his/her domestic domicile or change of residence in accordance with the same procedure and method pursuant to Article 6 of the former Overseas Koreans Act. There was no discrimination between a Korean national residing abroad and a foreign nationality Korean under Article 6 of the former Overseas Koreans Act

Meanwhile, under the Overseas Koreans Act, a foreign nationality Korean who reported the domestic place of residence or the change of his/her place of residence under the Immigration Control Act is deemed to have filed a foreigner registration and the change of his/her place of residence under the Immigration Control Act (Article 10(4)). Therefore, Article 88-2(2) of the Immigration Control Act applies to a foreign nationality Korean who reported the domestic place of residence. As such, as seen earlier, a foreign nationality Korean who reported the domestic place of residence in accordance with the Overseas Koreans Act is deemed to have the same legal effect as the resident registration prescribed by Article 3(1) of the Housing Lease Act as the requirements for setting up against the lease of a house (see, e.g., Supreme Court Decision

C. As above, with respect to the foreigner registration of foreigners and foreign nationality Koreans under the Immigration Control Act, or the report of domestic domicile of foreign nationality Koreans under the Overseas Koreans Act, there is a provision that can be treated equally as the resident registration prescribed by Article 3(1) of the Housing Lease Act.

However, at the time of the enforcement of the former Overseas Koreans Act, there was no explicit basis provision allowing overseas Koreans to treat their domestic residence report under Article 6 of the same Act as the resident registration prescribed by Article 3(1) of the Housing Lease Act. Moreover, since overseas Koreans are not foreign nationality Koreans, they are not subject to Article 10(4) of the Overseas Koreans Act.

Comparing with Article 88-2(2) of the Immigration Control Act, the provision on the domestic domicile report of Korean nationals residing abroad as above, there is a gap in the law as to whether it can substitute the resident registration and move-in report with the domestic domicile report and move-in report of Korean nationals residing abroad.

D. Examining the legislative circumstances of the Overseas Koreans Act, it cannot be deemed that the legislators excluded the act of replacing the resident registration and move-in report with the report on domestic residence and move-in report of overseas Koreans.

(1) Article 9 of the Overseas Koreans Act provides, “In the event that any resident registration certificate, certified copy or abridged copy of a resident registration card, foreign registration certificate, or foreigner registration certificate is required in various procedures and transactional relations, it may be substituted by a report card of domestic place of residence or a certificate of domestic domicile report.” This corresponds to Article 88-2(1) of the Immigration Control Act.

However, Article 9 of the Overseas Koreans Act does not explicitly stipulate that the report of domestic residence and move of residence shall substitute the resident registration and move of residence as in Article 88-2(2) of the Immigration Control Act from the time of the enactment of the Act, and there is no provision that sets this purport in the Overseas Koreans Act.

As seen above, at the time of the enactment of the Overseas Koreans Act, the Korean resident could not file a resident registration unless the Korean national residing abroad renounces his/her emigration. In order to resolve the inconvenience therefrom, the Korean resident registration system was newly established at the time of the enactment of the Overseas Koreans Act. In addition, before the enactment of the Overseas Koreans Act, Article 88-2(2) of the Immigration Control Act regarding the substitution of the resident registration and move-in report was newly established. Therefore, it may be deemed that the Overseas Koreans Act did not explicitly stipulate whether the report on the domestic domicile and move-in

(2) Article 88-2(2) of the Immigration Control Act, in the process of reviewing the legislative bill of the National Assembly, was introduced and newly established as a result of further review of the issue of granting the opposing power of the Housing Lease Act. However, in relation to Article 9 of the Overseas Koreans Act at the time of the enactment of the Act on Overseas Koreans, the method of granting the opposing power under the Housing Lease Act with domestic residence report was not examined. However, there was no discussion that the opposing power of Article 3(1) of the Housing Lease Act should be excluded for overseas Koreans.

(3) Article 9 of the Overseas Koreans Act does not preclude the overseas Koreans from changing their resident registration and move-in report with their domestic domicile and move-in report. If Article 88-2(1) of the Immigration Control Act was newly established based on Article 9 of the Overseas Koreans Act based on Article 88-2(2) of the Immigration Control Act, the amendment of the Immigration Control Act should have been reviewed in the direction of establishing the same purport as Article 88-2(2) of the Immigration Control Act, in response to Article 88-2(2) of the Immigration Control Act, in response to Article 88-2(2) of the Immigration Control Act, the amendment of

E. As examined below in detail, in light of the legislative purpose of the Overseas Koreans Act, the purport of the system of reporting the domestic domicile of overseas Koreans, and the legal discipline on the foreigner registration or the report of the domestic domicile of overseas Koreans, etc., it is consistent with the principle of equity to acquire opposing power under the Housing Lease Act by deeming that the report of the domestic domicile or relocation of overseas Koreans was made by analogically applying Article 88-2(2) of the Immigration Control Act to the resident registration or relocation report.

(1) The purpose of the Overseas Koreans Act is to guarantee the legal status of overseas Koreans in the Republic of Korea (Article 1 of the former Overseas Koreans Act). Procedures and methods for reporting the domestic domicile or change of residence of overseas Koreans who have entered the Republic of Korea as overseas Korean under the former Overseas Koreans Act and foreign nationality Koreans who have entered the Republic of Korea as overseas Korean as overseas Korean, are the same (Article 6 of the former Overseas Koreans Act), and foreign nationality Koreans who have reported the domestic domicile are equally entitled to the same rights as nationals of the Republic of Korea when they acquire, possess, use, and dispose of real estate in the Republic of Korea except in cases under Article 4(2)1 of the Foreigner’

(2) The report of domestic domicile or change of residence of a Korean national residing abroad at the time of the enforcement of the former Overseas Koreans Act is compared with the report of foreign registration or change of residence under the Immigration Control Act, and the procedure and method of reporting the change of residence or residence, and the method of preparing and managing the report of domestic domicile or foreigner registration card.

(3) As seen above, the purpose of Article 88-2(2) of the Immigration Control Act concerning foreigners and Article 10(4) of the Overseas Koreans Act concerning foreign nationality Koreans is to protect the legal protection equivalent to that of the resident registration if a foreigner or foreign nationality Korean files a foreigner registration or a domestic residence report, and in particular, this directly demonstrates the effect in granting the opposing power recognized to the housing lessee. However, the overseas Koreans can report the domestic place of residence in accordance with Article 6 of the former Overseas Koreans Act, but they are not subject to Article 10(4) of the Overseas Koreans Act, not subject to Article 88-2(2) of the Immigration Control Act.

(4) A foreigner or a foreign nationality Korean may obtain opposing power under the Housing Lease Act due to a foreigner registration or a foreign nationality Korean. Considering that a Korean national who is a national of the Republic of Korea is unable to obtain opposing power under the Housing Lease Act as a result of a foreign nationality Korean unlike a foreign national or a foreign nationality Korean is contrary to equity. Therefore, it is reasonable to ensure equal legal protection by deeming that a foreign national or a foreign nationality Korean has filed a resident registration or a moving-in report, even if he or she reported a moving-in report, and thus,

Article 2(2) of the Constitution provides that the State shall have the duty to protect overseas Koreans under the conditions as prescribed by Act. In addition, Article 6(2) of the Constitution provides that the status of foreigners shall be guaranteed under the conditions as prescribed by international law and treaties. The necessity for residential stability and protection for overseas Koreans and foreigners is equal. Therefore, when interpreting and applying the statutes and legal principles on legal relations concerning residential relations between foreigners, foreign nationality Koreans and overseas Koreans, such constitutional ideology should be realized as much as possible.

(5) The foreigner registration or the domestic domicile report of a foreign nationality Korean is very limited to the effect of disclosure that allows a third party to recognize the existence of a lease for the safety of transaction compared with the resident registration under the Resident Registration Act. However, since the inspection of the resident registration or the issuance of a certified copy or abstract is permitted only to the foreigner himself/herself, his/her household members, or those who have a legitimate interest in the lease contract, and the contents of the lease contract are not publicly announced through the resident registration, the publication function does not fall under the same degree as the real estate registration. Although the foreigner registration or the domestic domicile report and resident registration differ in the effect of public announcement, it does not have to

Meanwhile, the Housing Lease Act, amended by Act No. 12043, Aug. 13, 2013, and enforced from January 1, 2014, imposes an obligation to prepare a fixed date register stating the date of granting a fixed date date, rent, deposit, lease term, etc. on an institution granting a fixed date with respect to housing lease contracts. A person who has an interest in housing lease, newly establishes a system for granting a fixed date and providing lease information that allows the institution granting the fixed date to request the institution granting the above lease information to provide the above lease information (including a foreign national Korean). This is intended to reinforce the limited disclosure function of resident registration, foreigner registration, etc., and thus, the effect of publication of the lease contract by the fixed date register does not differ between the national and foreigner. However, this system is not deemed to have been newly introduced after the conclusion of the instant lease contract, and accordingly, it can be deemed that the method of public announcement of the lease contract concluded by foreigners, etc. has been prepared in lieu of a foreigner registration and a change report (see Article 88-2(2) of Immigration Act).

F. In short, Article 88-2(2) of the former Act on Overseas Koreans does not expressly provide that the report on the domestic domicile and the move of residence of a Korean national residing abroad shall substitute the resident registration and the move-in report, but Article 88-2(2) of the Immigration Control Act shall apply mutatis mutandis to the report on the domestic domicile and the move-in report completed by the Korean national residing abroad pursuant to Article 6 of the former Act on Overseas Koreans in lieu of the resident registration and the move-in report. Therefore, the domestic domicile report of a Korean national residing abroad shall be recognized as having the same legal effect as the resident registration prescribed by Article 3(1) of the Housing Lease Act, and in this case, it shall be deemed as having been a move-in report at the time of

4. Determination on the instant case

A. The reasoning of the lower judgment and the evidence duly admitted reveal the following.

(1) On November 21, 2012, the Plaintiff completed the registration of the establishment of a neighboring mortgage with respect to the instant housing as KRW 95,50,119, the Nonparty, the mortgagee, the maximum debt amount, and the maximum debt amount.

(2) On September 27, 2013, the Defendant, a Korean national residing abroad who acquired a permanent residence in New Zealand, leased the instant house from the Nonparty, the owner of which was KRW 25,00,000, by determining the lease deposit amount to KRW 25,000, and thereafter, obtained a fixed date in the lease agreement on September 30, 2013

(3) The Defendant received the instant house on September 30, 2013, and completed the report on the move of the instant house to its temporary domicile, and thereafter is residing in the instant house until now.

(4) On January 13, 2014, at the request of the Bank of Korea, Korea, a first priority mortgagee, started an auction procedure to exercise the real estate security right on the instant housing on January 13, 2014, as Incheon District Court Branch Decision 2014Ma937, the Plaintiff was a mortgagee, and the Defendant was a lessee, respectively.

(5) On October 24, 2014, the executing court recognized the Defendant as a lessee with opposing power under the Housing Lease Act, and prepared a distribution schedule to distribute the amount of KRW 19,231,104, including KRW 19,00,000,00 to the Defendant, and the Plaintiff.

B. Examining these facts in light of the legal principles as seen earlier, regarding the report on the move of the instant house, which the Defendant, a Korean national residing abroad, completed pursuant to the former Overseas Koreans Act, as the move-in report at the time of filing the move-out report, the legal effect of the said report is recognized as having the same legal effect as the resident registration stipulated by Article 3(1) of the Housing Lease Act as the requisite for counterclaim. Therefore, the Defendant to whom the instant house was handed over should be deemed to have satisfied the requisite for counterclaim as stipulated in Article 3(1) of the

The Plaintiff cited Supreme Court Order 2012Ma825 Decided September 16, 2013 to the effect that it is difficult to deem that the report on the change of residence of a Korean national residing abroad under Article 9 (1) of the Overseas Koreans Act is a provision to substitute the resident registration, which is a requisite for setting up against the Plaintiff under Article 3 (1) of the Housing Lease Act. However, the foregoing issue is different from this case, since the lessee, who is a Korean national residing abroad, has completed the report on the change of residence under the former Overseas Koreans Act, but the resident registration was made under the Resident Registration Act at other domiciles. However, the foregoing issue is different inasmuch as the lessee of the house, who was a Korean national residing abroad, established a

Nevertheless, the lower court determined that it cannot be deemed that the Defendant, who is a Korean national residing abroad, satisfied the requirements for counterclaim under the Housing Lease Act, and accepted the Plaintiff’s primary claim. In so determining, the lower court erred by misapprehending the legal doctrine on the validity of the report on domestic residence or the report on the change of residence under the former Overseas Koreans Act, thereby adversely affecting the

5. Conclusion

The Defendant’s appeal is with merit, and 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.

Justices Lee Dong-won (Presiding Justice)