매매계약이 해제된 경우 미등기 매수인이 한 임대차의 운명 - 대법원 2008. 4. 10. 선고 2007다38908, 38915 판결 -

The Supreme Court of Korea ruled in a recent decision (rendered on 10. April 2008, case number: 2007Da38908, 38915) that a leaseholder who had met all the requirements prescribed in article 3 (1) of Korean Housing Lease Protection Act (completion of delivery of house and resident registration) can oppose with the lease, even when he acquired it from the unregistered vendee of the property so that the lessor was not an owner of the property (see article 186 of Korean Civil Code, which requires a registration to acquire a property), against the vendor who reacquired the ownership of the property by rescinding the sales contract between the vendor him- or herself and the vendee-lessor. The reasons for this decision the Supreme Court of Korea presented are as follow: (1) it is not required to be leased by an owner of the property for acquiring a lease opposable to those other than lessor (an opposability of a lease); only required is to be leased by one who has an authority to lease; (2) when vendor delivered a property to vendee on the basis of a sales contract, the vendee has an authority to lease even if he did not register his ownership; and (3) a leaseholder who acquired a lease opposable to those other than lessor is protected from the effects of rescission of the sales contract as a third party in the meaning of article 548 (1) of Korean Civil Code. In this article, this decision and its legal grounds are examined: though the first two grounds the Supreme Court of Korea presented are agreeable,the last ground is not; the last proposition, which has been approved by the case law as well as legal literature, ought to be understood carefully or needs elaboration; considering the fact that the opposability of a lease is supposed to protect a leaseholder not to lose his or her lease in case of a possible transfer of the property and that the limitation of effect of contract rescission by article 548 (1) of Korean Civil Code presupposes the transfer of a property, this proposition should not be applied to the case where the lessor did not acquire the ownership so that there was no transfer of the property; in other words, it holds true only when there was a transfer based on the contract rescinded thereafter, which is not possible without a registration. As a result, the conclusion of the judgment, which recognized leaseholder’s right against the vendor who rescinded the contract, is also arguable.