임대차법의 현황과 과제

A proposal to reform the current landlord and tenant law in Korea

This paper is to examine the current landlord and tenant law in Korea and to propose to reform the land registration procedure for the grant of tenancy. Under the Korean Civil Code, enacted in 1958, registration is required for the valid grant of tenancy. Unless a tenancy is not registered, a transferee of a property let to the tenant can get vacant possession. Registration, however, has not been used as a popular device in tenancy transactions. The most important reason is that the registration must be applied for by both parties of a tenancy. Most landlords do not want to apply for registration of his grant of tenancy. Under the Protection of Residential Tenancy Act, enacted in 1981, a transferee of a property let to a person registered as a resident at the property shall be bound by a tenancy between the transferor and the resident. If the transfer is the result of a public auction, the adjudicature shall be bound by the tenancy where the tenant was registered before the first settlement of hypothec on the property. If the tenant cannot hold his tenancy against the adjudicature, he should vacate the property and require his landlord to repay his deposit. If the tenant has an instrument in writing with a date officially confirmed, he is entitled to be satisfied out of the proceeds of the property. Furthermore, comparatively poor tenants are entitled to be repaid certain amount of his deposit in preference to other persons. The categories of tenants which fall within the scope of such protection are those whose deposit is 40 million won or below in Seoul, and 30 million won or below in the rest of South Korea. The 1981 Act established a basic framework for the protection of tenants. The Protection of Business Leases Act, enacted in 2001, provides a tenant with similar protections, such as one against eviction by a transferee of the property. While it is true that the resident registration works quite well as a device for protection of tenants, it does not work well as a device for public notice. It is suggested that land registration for the grant of tenancy should be applied by a tenant, not by both parties of tenancy. If this suggestion were accepted, the two special statutes could be repealed and consolidated in an amended form by the Civil Code.