공공임대주택에서 임차인의 우선매도청구권의 법적 성질과 그 권리행사기간

Although the right to buy system has a positive legislative purpose of maintaining the tenant’s residential rights, many disputes and litigations are taking place due to lack of legislation and legislative uncertainty. This paper deals with the legal nature of the rights arising from the legal status of the tenant and the period for exercise of this right in relation to the so called right to buy system in public rental housing. In this respect, there has been no clearance in the lecture or court decision. In public rental housing, the tenant's right of claim a sale is rooted in the tenant's right to buy regarding to the conversion from rental contract to the sales contract and the right to claim for the sale should be understood as a statutory formative right recognized by legal regulations for tenant protection. If and when the rental business company intends to convert the rental contract, it is possible for tenant to conclude a sales contract with the rental business company through conversion agreement without any problem. However, if no conversion agreement is reached on the sales contract, the tenant must be able to conclude the contract through unilateral declaration, accordingly through statutory formative right. Under the Act on public rental housing, if the period for exercise of the tenant’s right to claim a sale is set by law, the interests of the both parties can be protected sufficiently. However, because the law does not set a period for exercising this right, if the tenant is able to exercise the right to sell with unilateral declaration, the rental business company will be in an unstable position. The period of exercising the right of formative right falls under a category of the period of exclusion and may be seen as 5 to 10 years if there is no statutory standard. However, since the period of exercising such rights is also excessively long-term, restrictions by abandonment of right and subprinciple of estoppel doctrine are thus required. If the rental business company is willing to convert the rental contract to a sales contract, the legal stability is guaranteed since procedure is already in a law existent that can be regarded as the abandonment of the right to buy. However, there is a need to apply the subrule of estoppel, so called loss of the validity, exceptionally because there is no legal process that regards the tenant’s right to buy as abandoned, after the tenant apply conversion because the rental business company is not willing to convert the rental contract to a sales contract. Finally, the right to apply for a conversion is based on the existence of the right to buy. So right to apply for conversion can not be recognized, if the period for exercise of a private right to buy has elapsed.