임대주택 양수인에 대한 임대차보증금반환채권의 가압류의 효력 - 대법원 2013. 1. 17. 선고 2011다49523 전원합의체 판결- (The Effect of Provisional Seizure of Lease Deposit Return Bond on Leased Housing Transferee)

서지정보

· 발행기관 : 원광대학교 법학연구소
· 수록지 정보 : 원광법학 / 30권 / 4호 / 65 ~ 92페이지
· 저자명 : 조준현

초록

The Article 3 Section 4 of the Housing Lease Protection Act and the Article 3 Section 2 of the Commercial Building Lease Protection Act stipulate that the transferee of leased housing or commercial building is deemed to have succeeded the status of the lessor. In this regard, in the case where the leased housing or commercial building is transferred after the provisional seizure of the lessee’s lease deposit return bond, whether the transferee succeeds not only to the status of the lessor on the substantive law but also to the status of the tertiary debtor of provisional bond seizure on the execution law becomes problematic.
To this, the majority ruling of the Supreme Court plenary trial 2013.1.17.sentence 2011C49523 rendered that in the case where the leased housing had been transferred in the state of provisional seizure of lease deposit return bond pursuant to the Housing Lease Protection Act, due to the special stipulation of the Article 3 Section 4 of the Housing Lease Protection Act, the transferee of the leased housing succeeded not only to the status of lessor on the Housing Lease Protection Act but also to the status of tertiary debtor in the provisional bond seizure, and the provisional seizer could claim the effect of the provisional seizure only against the transferee.
On the contrary, the minority opinion of the said trial stated that in this case because the transferee did not succeed to the status of the tertiary debtor in the provisional bond seizure, the effect of the provisional seizure did not bind the transferee; furthermore, because the transfer of the leased housing exempted the transferee of the lease deposit return bond, the provisional seizure on the transferor also dissolves in effect.
However, even if the tertiary debtor changes after the provisional bond seizure goes into effect, as long as the status of the prior tertiary debtor succeeds comprehensively – e.g., inheritance, merger and acquisition – to sustain the effect of preservation of the provisional seizure, the effect of the provisional seizure extends to the comprehensive successor (heir, succeeding or new company after the merger and acquisition).
The transferee’s succession to the status of the lessor pursuant to the Article 3 Section 4 of the Housing Lease Protection Act, in the limited scope of lessor’s rights and obligations with regard to the leased housing, is a comprehensive succession in light of point that the legal effect takes place similar to the case of partition merger which is a comprehensive succession. Since the status of the tertiary debtor who is issued an injunction of payment prohibition to the lease deposit return bond presupposes the lessor who bears the lease deposit return bond, the status of the lessor who bears the lease deposit bond on substantive law cannot be separated from the status of the tertiary debtor in the provisionary seizure of lease deposit return bond on execution law. Therefore, the transferee of the leased housing also succeeds to the status of the tertiary debtor in the provisionary seizure of lease deposit return bond, and the provisional seizer can claim the effect of the provisional seizure only against the transferee of the leased housing. Such interpretation befits the legislative purpose of the Housing Lease Protection Act which intends to protect the lessee and the legal system of the execution law on the effect of provisional seizure.

영어초록

The Article 3 Section 4 of the Housing Lease Protection Act and the Article 3 Section 2 of the Commercial Building Lease Protection Act stipulate that the transferee of leased housing or commercial building is deemed to have succeeded the status of the lessor. In this regard, in the case where the leased housing or commercial building is transferred after the provisional seizure of the lessee’s lease deposit return bond, whether the transferee succeeds not only to the status of the lessor on the substantive law but also to the status of the tertiary debtor of provisional bond seizure on the execution law becomes problematic.
To this, the majority ruling of the Supreme Court plenary trial 2013.1.17.sentence 2011C49523 rendered that in the case where the leased housing had been transferred in the state of provisional seizure of lease deposit return bond pursuant to the Housing Lease Protection Act, due to the special stipulation of the Article 3 Section 4 of the Housing Lease Protection Act, the transferee of the leased housing succeeded not only to the status of lessor on the Housing Lease Protection Act but also to the status of tertiary debtor in the provisional bond seizure, and the provisional seizer could claim the effect of the provisional seizure only against the transferee.
On the contrary, the minority opinion of the said trial stated that in this case because the transferee did not succeed to the status of the tertiary debtor in the provisional bond seizure, the effect of the provisional seizure did not bind the transferee; furthermore, because the transfer of the leased housing exempted the transferee of the lease deposit return bond, the provisional seizure on the transferor also dissolves in effect.
However, even if the tertiary debtor changes after the provisional bond seizure goes into effect, as long as the status of the prior tertiary debtor succeeds comprehensively – e.g., inheritance, merger and acquisition – to sustain the effect of preservation of the provisional seizure, the effect of the provisional seizure extends to the comprehensive successor (heir, succeeding or new company after the merger and acquisition).
The transferee’s succession to the status of the lessor pursuant to the Article 3 Section 4 of the Housing Lease Protection Act, in the limited scope of lessor’s rights and obligations with regard to the leased housing, is a comprehensive succession in light of point that the legal effect takes place similar to the case of partition merger which is a comprehensive succession. Since the status of the tertiary debtor who is issued an injunction of payment prohibition to the lease deposit return bond presupposes the lessor who bears the lease deposit return bond, the status of the lessor who bears the lease deposit bond on substantive law cannot be separated from the status of the tertiary debtor in the provisionary seizure of lease deposit return bond on execution law. Therefore, the transferee of the leased housing also succeeds to the status of the tertiary debtor in the provisionary seizure of lease deposit return bond, and the provisional seizer can claim the effect of the provisional seizure only against the transferee of the leased housing. Such interpretation befits the legislative purpose of the Housing Lease Protection Act which intends to protect the lessee and the legal system of the execution law on the effect of provisional seizure.

참고자료

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