주택임대차보호법상 임차권과 보증금반환채권의 양도 및 우선변제력

Abstract

The Housing Lease Protection Act 3-2 Article (2) Any lessee who has met the requirements for opposing power prescribed in Article 3 (1), (2), or (3), and obtained the fixed date on the lease contract document (referring to lease contract documents between a corporation and a lessor in cases falling under Article 3 (2) and (3)), shall be entitled to receive the repayment of the deposit from the converted price of the leased house (including the site thereof), in preference to any junior obligors and other creditors, at the time of an auction conducted under the Civil Execution Act and a public sale under the National Tax Collection Act. Recently the Supreme Court did state that if a tenant transfers the right of lease and the right to request of deposit, a transferee can exercise the right to preferential payment under the given requirements. But the Supreme Court did state that in case a tenant transfers only the right to request of deposit during a period of lease separately, a transferee can’t exercise the right to preferential payment. If a tenant transfers only the right to request of deposit during a period of lease separately, it is right that the right to preferential payment must be accepted. There wasn’t any provide on whether or not recognized of the right to preferential payment related to transfer and security of the right to request of deposit in The Housing Lease Protection Act. But if some financial institutions receive the right to request of deposit, the right to preferential payment can be accepted by recently revised The Housing Lease Protection Act. The Housing Lease Protection Act 3-2 (7) Where any of the following financial institutions, etc. takes over by contract the claim for repayment of deposit of a lessee who has acquired the preferential repayment right pursuant to paragraph (2), Article 3-3 (5), or 3-4 (1), it shall succeed the preferential repayment right within the extent of the amount he/she has taken over. This article restricts scope of the transferee that can be accepted right to preferential payment. Namely this article give preference to some financial institutions without reasonable causes. Therefore the Housing Lease Protection Act 3-2 (7) should be amended.