임대차보증금반환채권에 대한 담보목적 전세권의 법률관계 - 대상판결 : 대법원 2021.12.30. 선고 2018다268538 판결 -

Abstract

In the case where there is no contract for the establishment of Chonsegwon, but the registration of the establishment of Chonsegwon is completed in the name of the lessee for the purpose of securing the large amount of deposit refund claim due to the lease agreement. In this case, the Chonsegwon of such contents is different from the contents of the Chonsegwon as stipulated in Article 303 of the Civil Act. So the Supreme Court tends to resolve this issue mostly through the misrepresentation theory. This is understood as an aspect considering the protection of the other party's trust and also the protection of transaction safety. This attitude of the prior precedent is maintained in the target judgment as it is. However, what is particularly noteworthy in the target judgment is the part stipulating that “a contract to establish a Chonsegwon is invalid as it is a false statement of authority to the extent that it is incompatible with a lease contract”. If so, it is necessary to review whether deducting the overdue rent from the Chonse money as in the judgment is invalid as it is a legal nature of the Chonsegwon and a false statement of authority. On the other hand, the Chonsegwon can be provided as collateral to others unless prohibited by the act of establishment. However, in this case, the lessor may suffer unexpected damages, such as if the lessee is overdue for rent. This is because, depending on the existence of the mortgagee of Chonse and whether it is good or bad, the right or wrong of deduction of overdue rent from Chonse money or the right to set-off defense and the scope there of may be problematic. In this paper, i will first look at the attitudes of prior precedents and theories focusing on the above-mentioned issues, and then, based on this, review the conclusion of the target judgment and the validity of its arguments.