개정 주택임대차보호법의 문제점 검토 ― 계약갱신요구권과 전월세인상률 상한제의 한계를 중심으로 ―

The Housing Lease Protection Act (the “Protection Act”) which was first enacted as a special provision of the Civil Act for the purposes of protecting tenants was revised on July 31, 2020 to add the tenants’ right to demand renewal and the rent ceilings. This paper argues that the revised Protection Act’s right to demand renewal and the rent ceilings have fundamental flaws. While the principle of private autonomy which is more closely defined in the freedom of contract guarantees private citizens to freely choose their counterparts and the contents of their contracts, the revised Protection Act’s mandate violate these basic principles by forcing landlords to renew their current leases at the same level of rents by effectively taking away their freedom of contract. Further, since the revised Protection Act has the characteristics of ex post facto law, it is important to note that the applicability of the revised Act should be limited so to not undermine the principle of preservation of the public trust and confidence in existing laws. While the need for protecting landlords’ trust and confidence in existing regulation is high, the public interest to be protected by the added provisions of the revised Protection Act is small, therefore resulting in violation of the principle of preservation of the public trust and confidence in existing laws. Even if the public interest to be protected by the revised Act weighs more than the private interest of landlords, by not including any transitional measures, the revised Act’s provisions may still violate the principle of preservation of the public trust and confidence in existing laws. Also, since there will be number of ways to possibly bypass or workaround the tenants’ right to demand renewal and the rent ceilings, the revised Protection Act’s real world applicability is in question as well. In sum, the addition of the tenants’ right to demand renewal and the rent ceilings under the revised Protection Action must be repealed as they violate the principle of private autonomy under the Civil Act and the constitutional principle barring retroactive legislation. It is the opinion of the Author that by allowing the free market system to function itself and providing ample information to the market participants in conjunction with possible extension of the standard lease period (under Article 4 of the old Protection Act) from two years to three or four years would better serve as protection of tenants.