사법체계에서의 사회적 규정 도입의 필요성 - 독일과 한국의 주택임대차법을 중심으로 -

Housing, as a core element of human existence, is integral to the enjoyment of private life; its regulation inevitably implicates social considerations. Germany and Korea are comparable in that approximately half of their populations reside in rental housing and both are confronting the structural challenges of a super-aged society. In Korea, under the Housing Lease Protection Act, even when a tenant exercises the statutory right to request renewal, the landlord may refuse by invoking personal occupancy, with litigation often turning on the genuineness of such intent. In Germany, by contrast, the “social clause” (Sozialklausel) shifts the inquiry: the decisive question is not the authenticity of the landlord’s claimed need for personal use, but whether the tenant’s hardship—such as illness, advanced age, or disability—outweighs the landlord’s interest. Earlier comparative studies have suggested a structural divergence, namely that German law presumes indefinite tenancies while Korean law presumes fixed terms. However, the current German Civil Code permits fixed-term leases only for statutorily enumerated reasons, affirming the principle of indefinite duration. Historical analysis further shows that, even before the present amendments, the social clause applied to open-ended leases, thereby addressing this perceived limitation in prior scholarship. While the wholesale transplantation of a German-style social clause into Korean law would necessitate the resolution of multiple preliminary issues, it remains desirable that Korea’s Housing Lease Protection Act be reformed, at minimum, to secure unequivocal protection for tenants facing genuine hardship.