임대차보증금반환채권의 가압류와 임차주택의 양도－대법원 2013. 1. 17. 선고, 2011다49523 전원합의체 판결을 중심으로－

Abstract

Article 3, section 4 of the Housing Lease Protection Act provides that “the provisions of Articles 575(1) and (3) and 578 of the Civil Act shall apply mutatis mutandis to cases where a house, an object of the lease under this Act, is the object of a sale or public auction.” The majority opinion and court judgment consider it as a reasonable succession provision under the law. Assignee being succeeded landlord’s entire rights and obligation by the lease contract with combined ownership of subjected house when leased house assigned. In this result, the assignee shall succeed without charge the refund claim of lease security deposit and assignor withdraw the relationship of lease contract and being discharged the obligation of refund claim of lease security deposit. In case, however, the leased house assigned with the refund claim of lease security deposit is attached even tenant’s claim which secured opposing power that is provided by the Housing Lease Protection Act, the issue is whether assignee succeeded third party debtors status in the attachment and whether creditor of the attachment can claim the effectiveness of attachment against assignee. If assignee succeed third party creditor of claim attachment position, she may unexpectedly get damage of double payment of lease security deposit means that assignee being repaid lease security deposit that already refunded to tenant to attachment creditor. On the other hand, assignee did not succeeded third party creditor status of claim attachment, attachment creditor may get disadvantage that she is being lost her rights of preferential payment from the proceeds for house in the auction procedure in the future. In case of the lease security deposit refunded to tenant without refund claim of lease security deposit is being attached, the assignee also have unknown these fact, according to the Housing Lease Protection Act, the owner of the leased house were changed, attachment creditor also regarded as unknown that she believe that the execution of the refund claim of lease security deposit were secured. Because the subject court judgment is related to the question of which opinion is more adequate to the jurisprudence with the formal conflicts of interest, we should carefully consider the purpose of Housing Lease Protection Act, legislative intent of the Act of article 3 section 4, characteristic of succession of subjects and interprets individually and concretely. Court holding accepts succession affirmative theory and stand that the effectiveness of attachment gave generic effect to the assignee who succeeded landlord’s status by the special article 3 section 4 of the Housing Lease Protection Act. By sentencing the exception of general effectiveness of claim attachment, court award possibility of protection for attachment creditor who attaching refund claim of lease security deposit that subject to the Housing Lease Protection Act.