연체차임의 공제 - 대법원 2017. 3. 22. 선고 2016다218874 판결 -

Abstract

The security deposit which tenant pays to landlord when making a lease contract is to guarantee the compensation for overdue loan or damages occurred on the object. Therefore, it is reasonable to deduct overdue loan or debt from security deposit after the contract terminated. However, there are a few problems related to the overdue loan deductible from security deposit. In the judgement, the problem whether a grantee is able to deduct the overdue loan from security deposit was raised and the first trial, original trial and the supreme court are making judgement that overdue loan can be deducted from the security deposit based on different reasons each. The reason why the courts are suggesting different reasons is because the legal principle regarding the deduction of overdue loan from the security deposit is not clear. In this article, therefore, features of the security deposit and problems regarding the deduction of overdue loan from the security deposit were examined. The meaning of the transfer of landlord’s authority to the grantee when the object of lease was transferred, the most reasonable composition of the legal principle about the deduction of claim for overdue loan from the security deposit which occurred before the object was transferred, the relation between the deduction of overdue loan in returning the security deposit and the setoff were examined and the opinion regarding each problem was suggested. In conclusion, landlord needed to be given preemptive right in the sense that security deposit guarantees the overdue loan and the compensation of damage occurred on object of lease. However, there is also necessities to find ways to promote the safety of transaction when the relationship of lease changed due to the transfer of object of lease or the transfer of the security deposit.