임대인의 전차인에 대한 차임 직접청구권과 전차인의 차임지급의 항변60)－대법원 2008.3.27. 선고 2006다45459 판결－ (Lessor's direct action of rent against the sub-lessee and the sub-lessee's defence on the payment of rent)

서지정보

· 발행기관 : 한양법학회
· 수록지 정보 : 한양법학 / 31호 / 377 ~ 401페이지
· 저자명 : 오수원

초록

Article 630, 1st clause of Korean Civil Code prescribes: "If a lessee has sub-leased the object with the consent of the lessor, the sub-lessee assumes the obligations directly to the lessor. It this case the sub-lessee may not set a defense against the lessor by a payment of the rent to the sub-lessor." Differently from the Article 613 of Japanese Civil Code, the Article 630 of Korean Civil Code does not regulate the advance payment of the rent to the sub-lessor, and this type is different from the Article 1753 of French Code Civil which regulates the advance payment of the rent in the time of seize. Nevertheless according to the majority of the civilist and the cited judgement, the sub-lessee may not set a defense against the lessor by a payment of the rent in advance to the time of payment to the sub-lessor. But the interpretation like this is contrary to the meaning of the words of this Article, and the difference between the Article 630 of Korean Civil Code and the Article 630 of Japanese Civil Code is passed over. So just like a french doctrine of the direct action, the Article 630 of Korean Civil Code should be interpreted as the sub-lessee may not set a defense by a payment of the rent to the time of payment to the sub-lessor against the lessor after his exercise of the direct action.
The cited judgement in which the sub-lessee could compensate the overdue rent to the caution is not reasonable, and can be justified only in case that each obligation has the requisite for the set-off before the exercise of the direct action of lessor.

영어초록

Article 630, 1st clause of Korean Civil Code prescribes: "If a lessee has sub-leased the object with the consent of the lessor, the sub-lessee assumes the obligations directly to the lessor. It this case the sub-lessee may not set a defense against the lessor by a payment of the rent to the sub-lessor." Differently from the Article 613 of Japanese Civil Code, the Article 630 of Korean Civil Code does not regulate the advance payment of the rent to the sub-lessor, and this type is different from the Article 1753 of French Code Civil which regulates the advance payment of the rent in the time of seize. Nevertheless according to the majority of the civilist and the cited judgement, the sub-lessee may not set a defense against the lessor by a payment of the rent in advance to the time of payment to the sub-lessor. But the interpretation like this is contrary to the meaning of the words of this Article, and the difference between the Article 630 of Korean Civil Code and the Article 630 of Japanese Civil Code is passed over. So just like a french doctrine of the direct action, the Article 630 of Korean Civil Code should be interpreted as the sub-lessee may not set a defense by a payment of the rent to the time of payment to the sub-lessor against the lessor after his exercise of the direct action.
The cited judgement in which the sub-lessee could compensate the overdue rent to the caution is not reasonable, and can be justified only in case that each obligation has the requisite for the set-off before the exercise of the direct action of lessor.

참고자료

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