1. The legal character of an assignment of lease is, in essence, an assignment of a contract. When an assignment of lease is viewed as a type of an assignment of a contract, the legal relationship regarding the assignment of a lessee's position can be...
1. The legal character of an assignment of lease is, in essence, an assignment of a contract. When an assignment of lease is viewed as a type of an assignment of a contract, the legal relationship regarding the assignment of a lessee's position can be understood as follows. The assignment of lease is not only possible through a mutual agreement among three parties involved, but also through an agreement between a lessee and an assignee with a consent of a lessor. In this case, the consent of the lessor will be the condition for effectuation under the nature of an assignment of a contract. The position of a lessee will be generally transferred to the assignee by this assignment of lease, along with other subordinate contracts and obligations, and in case a lease with an absolute title[대항력] is assigned, this title may be transferred as well.
2. In the case of an assignment without a consent, the assignment of lease will be denied of any effect under the nature of an assignment of a contract. Under a special condition where the assignment of lease is not a result of a breach of trust by the lessee, the assignment of lease may be admitted without a consent of the lessor. The "special condition" in this case may include, among others, personal trust and economical interest as its more detailed criteria. Furthermore, an assignment of lease may be admitted in exceptional cases, pending an evaluation of a possible abuse of power by a lessor in refusing to give consent and terminating a contract. When there exists a special condition where an action does not account as a breach of trust to the lessor, the legal character of an assignment of lease shall be viewed as an assignment of a contract, since the condition of consent by the lessor (or a consent by a third person) need not be interpreted strictly and in some cases it is possible for an assignment of a contract to be admitted without a consent.
3. In case the object of the lease is transferred, the lessee may not, in principle, argue the real right of the new owner. However, as an exception, the Civil Law prescribes absolute title[대항력] in Articles 621 and 622 of the Civil Law Act and in Article 3 of the Housing Rental Protection Act. Especially in Article 3 Paragraph 2 of the Housing Rental Protection Act, the law allows the assignment of a lessee's position after a final and definite transfer of the object of the lease has taken place. Following the interpretation of this provision, since the assignee must have a final and definite transfer of the object and its position is generally assigned under this article, the assignee is an assignee of a contract in a statutory assignment of a contract. Meanwhile, in the viewpoint of the lessee, under the Housing Rental Protection Act, the lessee holds the absolute title and also the priority in repayment, which may both be exercised at the same time. The priority in repayment does not expire after its first use, but may be exercised in future auctions as well.
4. The lessee may stop the transfer of the lessor's position by making an objection. Before the lessee makes an objection, a certain period of time is required in order to test the assignee's financial resources. The lessor's position is assigned at the time of the assignment by Article 3 Paragraph 2 of the Housing Rental Protection Act, but the position is retroactively annulled when an objection is made, rendering the assignee's lessor position resolutively conditional upon the objection.