주택임대차보호법에 의한 임차권등기명령의 실무상 문제점에 관한 연구 - 임대인이 부동산소유자가 아닌 경우를 중심으로 -

Abstract

Korean Housing Lease Protection Act regulates leasehold registration orders in order to legally aid the lessee to acquire or maintain opposing power and preferential repayment right. Meanwhile, a person can be a lessor of a certain house even he is not the owner of such under Korean Civil Act, and Korean Supreme Court rules that if the lessor was granted ‘legitimate leasing right’ in such cases, the lessee can acquire opposing power and preferential repayment right of Korean House Lease Protection Act. But there are some practical problems when a lessee leased a house from a lessor who is not the owner but granted the legitimate leasing right, then tries to obtain a leasehold registration order or complete a registration of leasehold following such order under Korean House Lease Protection Act. To be more specific, when a leasehold registration order is applied against the lessor, there are problems such as the registration of leasehold not being completed by the execution of the leasehold registration order etc., and when a leasehold registration order is applied against the house owner, there are problems such as leasehold registration order not being able to be legitimately approved etc. The reason for such practical problems lies in the structure of Korean Housing Lease Protection Act and other relevant regulations concerning judgement and execution of leasehold registration orders, which were codified under premise that a lessor is always the house owner, thus such relevant regulations should be revised to resolve such problems. And it would be better to revise sub-regulations such as Regulation on Procedure of Leasehold Registration Orders rather than to revise Korean Housing Lease Protection Act Article 3-3(3) which regulates that Articles of Korean Civil Execution Act concerning provisional seizure procedure apply mutatis mutandis to judgement and execution of leasehold registration orders.