전세권의 법적 성질－구한국기 민사판결에 나타난 전세관습을 중심으로－

Abstract

Although there has been no room for dissent concerning the origin of theJeonse Right, opposing opinions have disputed over its legal characteristic. Onehas asserted that Joense is a right to secure the claim for repayment of themoney that was payed to the house owner, another has argued that Joenseis only a sort of House Lease. Interestingly all these arguments have aunderstanding in common, that is, Jeonse has stemmed from Customary Lawof the Early Modern Korea. As Court Decision Records of this period have issued to public accessrecently, an interesting literature that is based on the analysis of these recorudswas published. According to this literature Jeonse stands near to House Lease,although whether its legal character takes on some components of a right tosecure a claim is not clearly apprehended. This problem can be solved through a comparative study with the similarlegal rights stipulated in the Japanese Civil Code. Firstly it is useful to compareJeonse with the Pledge of immovable properties in Japanese Civil Code,because it has many contents in common. But the rule that prevent the claimerfrom demanding interest, which Jeonse and Pledge of immovable properties have in common, isn’t well-matched to a right to secure a claim. If Jeonseis a right to secure a claim, it is more natural that the fruits of the Housemust be appropriated first to the payment of interest on the claim, and anyremainder must be appropriated to the satisfaction of the principal. Secondlywe can catch the component of the real right in the history of the articlesof the Lease Contract in Japanese Civil Code. For example if Jeonse is olnya claim right a Jeonse right holder may not assign his rights or sublease thehouse without obtaining the approval of the lessor. But the Customary Lawdistilled from the Court Decision Records shows the opposite rule. In this respect the legal characteristic of the Jeonse should be accepted asLease that is strengthened as a real right.