채권적 전세의 법적 규율

Abstract

The lease on a deposit basis is a system which is unique to our country and still is the most widely used system as a method of residing at another person’s house although it is recently at a trend of gradual decrease. But it can be seen that the argument on the lease on a deposit basis as an obligatory right contract so far had been leaning toward the return of deposit for the most part. However, while the most important thing naturally is to safely get the deposit of large amount returned for the lessee of lease on a deposit basis as an obligatory right contract, it seems how its detailed legal relationship is regulated also needs to be focused on considering the used amount of lease on a deposit basis as an obligatory right contract in real life. But in relation to the lease on a deposit basis according to the existing law, the Civil Act Section 2 Chapter 6 is regulating on the lease on a deposit basis as a real right while the Housing Lease Protection Act Article 12 and the Business Building Lease Protection Act Article 17 are merely setting the regulations applying the concerned laws on the lease on a deposit basis as an obligatory right. Therefore, this paper has first examined what legal relationship the lease on a deposit basis system according to the customs has been formed and examined which regulations related to the lease on a deposit basis as an obligatory right contract are lacking by investigation under what intentions the existing laws related to the lease on a deposit basis have been legislated. And considering how the lacking regulations on the lease on a deposit basis as an obligatory right contract will be satisfied, there can be two types of methods to begin with. One is to apply the regulations related to the right to lease on a deposit basis as a real right by analogizing as much as possible and another is to apply the regulations related to the lease as an obligatory right contract If the legislation process of civil acts is investigated, the intention of legislators could be said as being close to the attitude of the former method. But looking at the legal relationship of the lease on a deposit basis as an obligatory right contract, there are many improper aspects in analogically applying the regulations related to the right to lease on a deposit basis as a real right. Also, while there are many cases of changing the lease on a deposit basis as an obligatory right contract as the monthly rent paying the deposit separately, it would be difficult to say that the actual legal relationship changes other than the method of paying such cost being changed. Therefore, the lease as an obligatory right contract merely has difference in the method of paying its cost and it seems reasonable to consider as basically falling under the lease agreement according to the Civil Act. Thus, it could be said that the person liable for the repair obligations in the lease as an obligatory right contract is the lessor (owner) in accordance with the Article 623 of Civil Act. However, while there are cases of establishing the lease as a real right contract, whether the Article 623 of Civil Act is applied as it is or whether the Article 309 of Civil Act is applied so that the lessee gets to be liable for the repair obligations becomes the issue in this case. In this case, compared with the case of establishing mortgage for the purpose of concerned party or the return of lease deposit, it would be difficult to say that the lessee is liable for the repair obligations as the Article 309 of Civil Act is applied. But even so, excluding the application of the Article 309 of Civil Act would also be difficult as long as the right to lease on a deposit basis as a real right has been established. While the Article 309 of Civil Act is difficult to find the actually applied examples and also evaluated as an optional regulation that can be excluded by the contract even according to the theory, it seems rather reasonable to remove this regulation by the amendment of Civil Act to prevent this problem from occurring.