임대주택 양수인에 대한 임대차보증금반환채권의 가압류의 효력 - 대법원 2013. 1. 17. 선고 2011다49523 전원합의체 판결 -

다국어 초록 (Multilingual Abstract)

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.

목차 (Table of Contents)

• Ⅰ. 서론
• Ⅱ. 사안의 개요와 소송의 경과
• Ⅲ. 대법원의 판단
• Ⅳ. 평석
• Ⅴ. 결론
• 참고문헌

참고문헌 (Reference)

• 1 곽윤직, "채권각론" 박영사 2003
• 2 이은영, "주택임대차보호법의 개정에 관하여" 1982
• 3 임주혁, "주택임대차보호법상 임차보증금반환채권이 가압류된 후 임대주택이 양도된 경우 채권가압류의 효력에 관한 법리" 부산판례연구회 25 : 2014
• 4 민경준, "주택임대차보호법상 보호되는 임대주택의 양수인과 제3채무자 지위의 승계" 4 : 2013
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• 13 "민법주해(ⅩⅤ) 채권(8)" 박영사 2007
• 14 박준서, "민법주석 채권각칙(3)" 한국사법행정학회 1999
• 15 임윤수, "민법강의" 형설출판사 2011
• 16 지원림, "민법강의" 홍문사 2012
• 17 김준호, "민법강의" 법문사 2013
• 18 김준호, "계약법" 법문사 2011