처분권한이 없는 임대인이 임대주택의 권리를 취득한 경우의 처분행위 효력- 대법원 2019.3.28. 선고 2018다44879,44886 판결 -

Abstract

The Civil Code of Korea has no provisions on granting disposition authority or supplementing (complementing) disposition authority subsequently so there are flaws in the law. In principle, if an unentitled person acquires the right of an object after an act of disposition, the flawed disposition authority is complemented by the effect of the change in a real right. Therefore, the other party should interpret that the right is lawfully acquired from that point on without any additional legal action. The Supreme Court decision 2018Da44879, 44886 decided on March 28, 2019, states that leases subject to Article 3(1) of the Housing Lease Protection Act include cases where a lease contract is signed with a lessor who is not the owner of the house but has the authority to legally enter into a lease contract with respect to the housing. Therefore, when a real estate collateral trust contract is concluded, the trustee has the power to lease, and when the truster enters into a lease contract with the consent of the trustee and the house is delivered to the lessee and the lessee completes the moving-in report, the subsequent complement of disposition authority is recognized, as the lessee acquires opposing power as soon as the truster completes the registration of ownership transfer due to the attribution of trust property. The Supreme Court decision 2018Da44879, 44886 decided on March 28, 2019, is significant in clearly stating that when a lessor without disposition authority acquires the ownership of a house according to the legal principles of complement, the lessee who meets the requirements for opposing power prescribed in Article 3(1) of the Housing Lease Protection Act obtains opposing power immediately after the lessor acquires ownership, but it is considered undesirable that Supreme Court decision 2012Da93794 decided on February 27, 2014, was not abolished which denied the lessee’s right to preferential payment on the grounds that the lessor did not have disposition authority. From a legislative perspective, it would be advisable to establish provisions similar to Article 185 of the Civil Code of Germany.