(a) Scope of opposing power of the lease as referred to in the proviso of paragraph (2) of the Addenda of the former Housing Lease Protection Act (Act No. 3379 of March 5, 1981);

(b) Whether the person who made the provisional registration made before the Housing Lease Protection Act enters into force, thereby treating him as the person who acquired the real right prior to the enforcement of the proviso of Article 2 of the Enforcement Rule of the said Act

(c) Relationship between the person holding the provisional registration and the lessee who moved into the provisional registration before and after the enforcement of the Housing Lease Protection Act;

A. The proviso of Article 2 of the former Housing Lease Protection Act (Act No. 3379, Mar. 5, 1981) states that even if a lease is unregistered prior to the enforcement of the said Act, if the transfer of a house and a resident registration are completed, it may be asserted against a third party pursuant to Article 3 of the said Act, and it is reasonable to say that the time of acquisition of a real right against a third party who has already acquired a real right prior to the enforcement of the said Act cannot be asserted as the effect of a lease prior to or subsequent to the time of the occurrence of the effect of a lease under Article 3 of

B. Even if a person who has made a provisional registration of priority preservation on the acquisition of real rights, etc. under Article 2 of the Registration of Real Estate Act before the enforcement of the former Housing Lease Protection Act (Act No. 3379 of March 5, 1981), has completed the principal registration after the enforcement of the same Act, the effect of acquisition of real rights, etc. is not retroactive to the time of provisional registration, but it brings about the effect of interim disposition upon the effect of priority preservation of provisional registration. Thus, the above person having the right to provisional registration should be deemed

C. In the event that a provisional registration has been made for a leased building before the enforcement of the Lease Protection Act, and the plaintiff and the defendant who moved into the lease contract for the said building before the provisional registration and completed the move-in report, it is clear that the plaintiff's provisional registration was made before the enforcement of the Housing Lease Protection Act. Thus, the plaintiff's provisional registration should be deemed to be the same as the acquisitor of the real right as provided in the proviso of paragraph (2) of the Addenda to the same Act. The defendants cannot oppose the third party who already acquired the real right before the enforcement of the Act due to the enforcement of the Act. Thus, the defendant cannot refuse

A. Article 3(1)(b) of the former Housing Lease Protection Act (Act No. 3379, Mar. 5, 1981); Article 3(2) of the former Enforcement Decree of the Housing Lease Protection Act (Act No. 3379, Mar. 5, 1981); Articles 3 and 6(2) of the Registration of Real Estate Act

Attorney Kim Jong-young, Counsel for the plaintiff 1 and four others, Counsel for the plaintiff-appellant of the deceased non-party

Defendant 1 and two others

Seoul High Court Decision 82Na4230, 4231 Decided October 6, 1983

The part of the lower judgment against the Defendants is reversed, and that part of the case is remanded to the Seoul High Court.

The Plaintiff’s attorney’s ground of appeal is examined.

1. According to Article 2 of the Addenda of the Housing Lease Protection Act (Act No. 3379 of March 5, 1981), this Act shall apply to the lease which is concluded or renewed after the enforcement of this Act: Provided, That the provisions of Article 3 shall also apply to the lease which is in existence at the time of enforcement of this Act, but it shall not apply to any third party who has acquired any real right before this Act enters into force.

Although the above proviso is a unregistered lease which was settled before the enforcement of the Housing Lease Protection Act, when the delivery and resident registration of the house are completed, it may be asserted against the third party pursuant to Article 3 of the same Act, but it is reasonable to say that the time of the acquisition of the real right with respect to the third party who has already acquired the real right before the enforcement of the above Act shall not be set up against the effect of the lease, prior to or subsequent to the expiration of the time of the lease under Article 3 of the same Act.

If the time of acquisition is later than the time of taking effect of the lease as stipulated in Article 3 of the same Act, the latter part of the proviso of paragraph (2) of the above Addenda would not be meaningful if the time of acquisition becomes later than the time of taking effect of the lease. In addition, in the Housing Lease Protection Act, the lessee of the lease without registration before the enforcement of the Housing Lease Protection Act could not assert the effect of the lease to the third party who acquired the real right after the establishment of the lease. If it is possible to claim the validity of the lease to the above person of the real right due to the implementation of illegal act, it would result in retroactively lose the effect of the lease to the non-registered lessee.

In addition, if a person who has made a provisional registration on priority preservation for the acquisition of real rights under Article 2 of the Registration of Real Estate Act before the Housing Lease Protection Act enters into force, has completed the principal registration after the enforcement of the same Act, the effect of acquisition of real rights, etc. is not retroactive to the time of provisional registration, but it brings about the effect of interim disposition by the effect of priority preservation of provisional registration, so the above provisional registration authority shall be deemed to be the same as the person who acquired the real

2. In this case, the judgment of the court below acknowledged that the deceased non-party, who is the deceased's decedent, completed the principal registration based on the provisional registration on December 15, 1981 after the provisional registration of the right to claim for transfer of ownership was completed on August 19, 1980 with respect to the buildings listed in the list Nos. 1 through 4 of the judgment of the court below, and Defendant 1, Defendant 2, and Defendant 3 entered the claim for transfer of ownership with the owner at the time of the above provisional registration and completed the move-in report before the above provisional registration was made, and the above Defendants can claim the validity of the above lease under the Housing Lease Protection Act, and thus, the above Defendants can claim for

However, according to the facts established by the court below, since it is clear that the provisional registration of the deceased non-party was made before the enforcement of the Housing Lease Protection Act, even if the principal registration based on the above provisional registration was made after the enforcement of the same Act, it should be the same as the acquisitor of the real right prior to the enforcement of the same Act, as provided in the proviso of Article 2 (2) of the Addenda of the same Act. If such, even if the date of the provisional registration is later than the date of the transfer of all the above Defendants, it is obvious that the above defendants cannot oppose the plaintiffs, who are the parties taking over the lawsuit against the deceased non

Ultimately, the judgment of the court below is erroneous in interpreting the proviso of Article 2 (2) of the Addenda of the Housing Lease Protection Act, and it is reasonable to discuss this point because it constitutes grounds for reversal under Article 12 (2) of the Act on Special Cases concerning

3. Therefore, among the judgment below, the part against the plaintiff against the defendant 1, 2, and 3 is reversed, and that part of the case is remanded to the Seoul High Court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Lee Sung-soo (Presiding Justice)