재건축사업구역 내 임대차관계에 대한 도시정비법의 규율과 법적 쟁점 검토

Abstract

The text of Article 81, Paragraph 1 of the 「Urban and Residential Environment Improvement Act」 (provision for suspension of use and profit) suspends the right of use and profit of the lessee in the reconstruction project area until the date of notification of transfer when there is a notice of management and disposal plan approval. On April 23, 2020, the Constitutional Court decided that compensation for reconstruction tenants could be resolved by lease contracts with landlords, that is, private autonomy, and therefore, provision for the suspension of use and profit did not violate the proportional principle.
 According to private law regulations such as the Housing Lease Protection Act and related regulations of the Urban Improvement Act, the redevelopment and reconstruction project may be a reason for refusal to renew the lease contract, but it is interpreted that the landlord, the owner of the building, cannot terminate the lease unilaterally. For the rapid progress of the maintenance project, the lease contract needs to be terminated in the middle, but for this purpose, the lease contract must include a special contract for the expiration of the lease right and transfer of the lease, or the lease contract must be terminated by agreement.
 However, the suspension of use and profit clause suspends the tenant's right to use and benefit, regardless of whether the lease contract between the lessor and the lessee has been terminated by private autonomy. The reconstruction project is basically a private-led maintenance project and is not a project with strong public interest and publicity like the redevelopment project. Nevertheless, uniformly suspending the use and profit of tenants for the progress of the reconstruction project violates the principle of minimal infringement. Moreover, considering the characteristics of real estate leases, which are the basis for housing and livelihood, it would be said to violate the principle of balance of legal interests. For the benefit of the project operator, if the method of resolving the lease relationship through private autonomy is excluded and the lease right is forcibly lost, it is balanced to systematically stipulate compensation measures for the tenant.
 Compensation measures that must respond to complex and diverse lease relationships need to be flexible. The level of compensation does not have to be the same as the redevelopment tenant, and it can be adjusted.