Housing tenants' problems developed into a social issue in early 1970's when industrialization and urbanization had resulted in increasing nuclear families and concentration of the populations in cities. Even worse, the provision specifying landlord's...
Housing tenants' problems developed into a social issue in early 1970's when industrialization and urbanization had resulted in increasing nuclear families and concentration of the populations in cities. Even worse, the provision specifying landlord's obligation to cooperate with tenant's registration of leasehold with the court registry was deleted from Article 621 of the Civil Code, and thus, the leasehold would be placed in a blind spot of the legal protection. Later in 1981, in order to protect petty tenants, Legislative Commission under National Security Emergency Committee promulgated 'Housing Tenants' Protection Act,' as a special code of the Civil Code. However, the special code would sometimes malfunction and at other times, would not respond property to rapidly changing social conditions, contrary to its cause. So far, the Act has been revised and supplemented 7 times to solve its malfunctions and problems and thereby, reinstate tenants' status and rights.
The main contents of Housing Tenants' Protection Act are "tenant's right of demure, warranty of lease period, control of rental and tenant's lien."
Tenant's right of demure, warranty of lease period and control of rental are adopted in foreign countries, too, but tenant's lien is a unique system adopted in Korea. Tenant's lien is unprecedented enough to demolish the conventional framework or the relationship between creditor and debtor.
For this study, the researcher reviewed preceding studies and relevant literature and comparatively examined the judicial cases and relevant authorities' opinions about Housing Tenant's Protection Act to address the problems, which can be divided in large into the following 4 categories.
The first problem involves tenant's right of demure. Paragraph 1 of Article 3 of Housing Tenant's Protection Act specifies that the conditions for tenant's right of demure are delivery of the house and registration of settlement with the unit administrative office. However, as Citizens' Registration Act was revised in 2006, citizens' settlement registered should not been open to the public in principle to protect citizens' human rights and privacy. Therefore, the Act should be revised to guarantee tenants's lien on condition of delivery of the house only, excluding the other condition or registration of their settlement.
The second problem involves warranty of lease period and control of rental. Of course, a system warranting the lease period is required for tenants' stable housing life. In this vein, it is deemed required of landlords to specify a justifiable cause for refusal of recontracting, which means that landlords' refusal of recontracting should be limited. In addition, it is also necessary to arrange the standards for rental by type of house and housing environment to control the rental. Besides, it is deemed desirable to establish a dispute arbitration committee under each local autonomous administration, and thereby, empower the committee to make decisions having the same legal effects as in-court compromise so that disputes and conflicts between tenants and landlords can be smoothly and voluntarily resolved within the region.
The third problem involves social feasibility of the court order for registration of leasehold and introduction of an insurance system warranting return of the rental deposits. Under such an insurance system, the landlords would be obligated to subscribe to an insurance warranting return of the rental deposits, and thereby, tenants could claim for the rental deposits against the insurance company in case landlords do not return the deposits in a timely manner after termination of the lease contract. In such a case, the insurance company might well exercise against the landlords the right of indemnity for their subrogation as specified in the Civil Code. If the system of the court order for registration of the leasehold should be operated in combination with the insurance system warranting return of the rental deposits, not only both systems would be used more but also the effects for tenants' protection would be maximized.
The fourth problem involve the unrealistic tenant's lien. Petty tenants are protected through 3 stages. First of all, only if petty tenants should meet the conditions (registration of settlement and delivery of house) for their right of demure at the time of auction, they would be paid part of their rental deposit. Although this system which began to be operated since 2001 has been enhanced 3 times for increase of the lien amount, not many tenants have used the system because the wide gap of amount between actual rental deposit and lien amount, which means that this system betrays the cause of Housing Tenants' Protection Act focused on tenants' rights and interests.
This study discussed housing tenants' protection centering around such 4 categories of problems.