임차권 양도에 따른 임대차보증금반환채권의 이전과 지명채권 양도의 대항요건

Abstract

This thesis is about whether it is needed to fulfil the requirements of Article 450(2) of the Civil Code- the requirements in order for a contractual right transferee to claim his/her right against a third party- when the right to the security deposit is transferred by transferring the leasehold of a house. About the leasehold transfer, the Civil law only provides that a lessee could transfer the leasehold under lessor's approval(Article 629 of the Civil Code). So, it could be discussed that the Civil Code governing the assignment of the contractual right could also be applied to the leasehold transfer. But the Civil law has no regulation about this issue, either. This thesis will begin with researching the tendency of the Court Decisions about the above issue in Chapter Ⅱ. And then, Chapter Ⅲ will start the discussion with a focus on the legal nature of the leasehold transfer. It is a common view that the leasehold transfer is the transfer of contract-transfer of the legal status as a party to a contract. So, Part 2 in Chapter Ⅲ will discuss in general about the transfer of contract, and then Part 3 & 4 will give considerations to the intent of Article 450(2) of the Civil Code and the comparative features of the leasehold, and the following Part 5 will suggest an opinion about the above issue. As the leasehold transfer is accompanied with the transfer of the leased object, the risk of double transfer is low and the lessee's transferee could easily check out that the leasehold's already been transferred. Moreover, the necessity to protect lessees of houses is greater than that of monetary creditors. Therefore, it is more appropriate to see that it's NOT needed to fulfil the requirements of Article 450(2) of the Civil Code, when the right to the security deposit is transferred by transferring leasehold.