주택임대차의 대항력과 경락인의 인수 범위에 대한 연구

Abstract

An opposing power and a preferential payment right of tenants are legal succession and legal security real right under Housing Lease Protection Act. But these rights of tenants should be guaranteed under substantial law and procedural law. A tenant with a relative opposing power should be protected of their right in their relative position. Especially in case of auctions, when the disposition permission is decided by the court to a successful bidder, it is desirable to burden them of responsibility to fulfill the contract based on the time of confirmation of disposition permission. After the confirmation, even if there was an error during the procedure, it cannot be objected. Only under the case laid out on Civil Execution Act Article 121, subparagraph 6, an objection shall be allowed. Additionally, after reporting the purchase, without consent of the highest bid applicant, the auction cannot be withdrawn. Therefore, considering this auction provision under Civil Execution Act, it is reasonable to view that an absolute opposing power exists when the disposition permission is confirmed not when the price for disposition is paid. This can prevent tactful tricks of a tenant with a relative opposing power as well as protect the well-intended previous lessor from being burdened a responsibility as a seller to pay damages to a successful bidder. If a relative opposing power becomes an absolute opposing power by paying the prior credit, a successful bidder becomes responsible to pay back the lease security deposit, and a lessor becomes liable for as a seller. The damage of this causes is substantive. Even when a successful bidder wins a damage suit, it is common that a lessor is incapable of compensation and thus the successful bidder cannot be compensated in many cases. This is an unfair consequence of immoderate protection of tenants. Therefore, specifying whether an opposing power is relative or absolute based on the confirmation of disposition permission can protect a successful bidder, and can attain legal stability by finding a negligent or reckless tenant with the knowledge that he only has a relative opposing power responsible.