주택임대차의 대항력과 동시이행항변권

Abstract

From its nature, concurrent performance plea is an exercise of a right to refuse performance. Concerning such right to refuse in the adversarial system, a debtor claims the existence of concurrent performance plea according to the burden of allegation, and a creditor denies the concurrent performance plea by proving that his performance was fulfilled according to the burden of proof. In other words, the agent of the burden of allegation and the agent of the burden of proof are separated. Additionally, the debtor can waive his right to plea the concurrent performance defense. If the debtor waives his concurrent performance plea, the court renders a judgment granting affirmative relief. If the debtor pleas the concurrent performance defense, the court gives a judgment ordering the concurrent performance. However, deterring effect of delay in performance and set-off is recognized to protect the dependent relation of performances in a bilateral contract. Meanwhile, in the opposing power of a lessee, the duty of the lessee to return the leased housing and the duty of the lessor to ensure residential right and to repay the housing deposit are in the relation of concurrent performance. A lessee can claim the opposing power to a successor of the housing. This can be viewed as the expansion of the concurrent performance plea to the third party. The opposing power can be classified as absolute opposing power, relative opposing power and limited opposing power. The Supreme Court ruled that relative opposing power binds a successful bidder when he pays the price for the auction. However, it would be more reasonable to institute “deadline for a request for distribution” system and shorten the effect of opposing power to the date of confirmation of sale permission decision. In case of limited opposing power of lessee, it would be reasonable to exclude the credit amount of unsubordinated creditors who established the debt between the date of acquisition of opposing power and the date of acquisition of the fixed date from the purchaser’s liability. In conclusion, concerning that the opposing power of lessees is the expansion of concurrent performance plea to the third party by the Housing Lease Protection Act, it should be balanced with the interest of the other interested parties in its exercise. Opposing power of lessees under the Housing Lease Protection Act is in concurrent performance relation with the duty to repay the housing deposit. Thus, it would be reasonable to view that the extend and content of concurrent performance plea depend on the type of opposing power, absolute, relative and limited.