주택임대차보호법상 임차주택의 양도와 임대인의 제3채무자로서의 지위의 승계 - 대법원 전원합의체 2013. 1. 17. 선고 2011다49523 판결에 대한 비판적 검토 -

Abstract

The problem arises whether the legal status of a lessor as the third debtor can be succeeded to a transferee, when a leased house is transferred with the deposit return credit sequestrated by the creditor of the lessee. In this regard, the Supreme Court accepted the succession for the first time. According to its ruling, the creditor of the lessee can be properly protected because the transferee cannot counter the creditor of the lessee though returning the deposit, but on the other hand, the transferee may have to afford double payment in case the deposit return to the lessee is not recognized as repayment for the quasi-possessor of the credit. According to an opposite opinion, meanwhile, distrained credit is lapsed when the leased house is transferred under sequestration and as a result the sequestration is lapsed, which implies that the creditor of the lessee may suffer unexpected damage caused by the lapse of distrained credit due to the act of disposal of the third debtor, namely the lessor. However, I cannot approve not only the majority opinion of 8 Lord Chancellors but also 5’s counterview. There is irrationality in the view that a transferee of a leased house, whereof deposit return credit was sequestrated, should take over a lessor’s legal status as the third debtor, and also it is irrational to view the legal force of sequestration as being lapsed. I think that the creditor of the lessee can exercise the deposit return credit against the lessor, the lessor cannot counter the creditor of the lessee with transfer of ownership of a leased house, pursuant to injunctive effect on the sequestration.