임대차 종료 후 보증금 미반환 시 법정임대차관계에 대한 소고 -최근의 판결례를 중심으로-

Abstract

The provisions of Article 4(2) of the Housing Lease Protection Act and Article 9(2) of the Commercial Building Lease Protection Act introduce the concept of statutory lease relationship when the return of the security deposit has not been completed after the termination of the lease. Despite playing a crucial role in actual lease transactions, the concept of “legal fiction of continued lease” or “statutory lease” has received limited scholarly attention to date. Recent years have seen significant Supreme Court rulings on this matter. The rulings of July 9, 2020, under case numbers 2016da244224 and 2016da244231, addressed the issue of the statute of limitations on the extinguishment of the right to claim the return of the security deposit during the recognition of a statutory lease relationship following the termination of the lease. In the ruling of November 9, 2023, under case number 2023da257600, the Supreme Court directly addressed Article 4(2) of the Housing Lease Protection Act, affirming that in statutory lease relationships, the lessee is only obligated to pay rent according to the original lease agreement if they have used or profited from the leased property. The ruling of February 2, 2023, under case number 2022da255126, dealt with cases where the lessee had transferred the right to claim the return of the security deposit, but the deposit had not been returned after the termination of the lease. This paper aims to examine the essence, requirements, and specific operation of statutory lease relationships by analyzing these Supreme Court rulings and other lower court decisions. Firstly, the establishment of a statutory lease relationship requires two conditions: ① termination of the lease (referred to as “expiration of the lease period” under the Housing Lease Protection Act) and ② the lessee’s failure to receive the security deposit. Regarding ①, it is argued that limiting the reasons for lease termination is not justified, and regarding ②, it is explained that this includes cases where the lessee has transferred the entire right to claim the return of the security deposit. Secondly, apart from these two conditions, there is a view that occupancy is required, which may be inferred from the courts’ attitudes, but considering the leasehold registration and the status of the lessee who has lost possession, my view is not to add occupancy as an additional requirement for statutory lease relationships is preferable. Lastly, it is argued that in statutory lease relationships, the lessee should only bear the obligation to pay the agreed rent. However, to achieve the objective of protecting the lessee, it is unfair to require payment of rent based on the existing lease agreement even when the market rent of the leased property has decreased, or when the lessee has not actually used or profited from the property.