주택임대차보호법상 대항력에 관한 고찰

Abstract

Article 3 (1) of the Housing Lease Protection Act stipulates that a opposing power arises from the day after the lessee is provided with a house and completes resident registration. The purpose of this provision is twofold. First, the delivery of a house and resident registration is a simple way of public notice than the registration. In the case that the delivery of a house and resident registration and the registration of a third party’s name took place on the same day, it is practically difficult to identify a person with the right of precedence by revealing the relationship. Second, suppose that the lessee completed the delivery and resident registration of the house on the same day after the registration of the third party, even though the third party confirmed that there was no lessee who had taken over the house and finished the resident registration there. If so, the purpose of this Article is to put the rights of registered third parties ahead of the lessee, in order to prevent irrelevance damage that a third party may incur. In addition, the effect of the preferential repayment prescribed in Article 3-2 (1) of the Act is the same as that of the opposing power and this has the effect of real right on third parties in a housing lease, so there is no rational reason to treat priorities between the lesses and third parties unlike the opposing power. Also, If a fixed date is provided on or before the date of occupancy and resident registration, it is the court case that the preferential repayment effect occurs on the basis of the day after the delivery of the house and resident registration are completed, similar to the opposing power. However, in order to guarantee the lessee’s security of housing and the security of the deposit, which is the legislative purpose of the Housing Lease Protection Act, the following day’s provisions should be abolished. Moreover if the lessee is provided with a house and completes resident registration in the house lease contract, the law should be amended to be effective to the third party even if there is no registration. According to the precedent, in Article 3 (1) of the Housing Lease Protection Act, resident registration is provided as a way of public notice that allows a third party to clearly recognize the existence of a lease right for the safety of transactions, but in view of the purpose of the resident registration system itself caused by administrative necessity, there is a big gap between the function of public notice and the public notice function is not so much, which is hurting the safety of the transaction. Therefore, it is desirable to return to the principle of public notice under the Civil Law and return it to the registration system.