전세권과 전세금반환채권에 대한 강제집행상의 문제

Abstract

In civil law academia, several issues related to the jeonsegwon mortgaged(Civil Code Article 371) have been being exposed so far and are unresolved in the current. Basically, the reason is why the jeonsegwon functions as a usufructuary right and as a security right. I have had many questions about this question when I also served as a judicial advisor. On this article, I dealt with how the issues related to the jeonsegwon mortgaged that is controversial in civil law is reflected in the civil enforcement procedures and they derive another related questions. After that, I treated issues and precedents related to jeonsegwon and repayment of deposit in civil enforcement procedures and expressed my opinion. In summary, the issues for this case are as follows. First, the problem is which one jeonsegwon is regarded as between real estate and other property rights in civil enforcement procedures. I believe that it is not valid to handle jeonsegwon as other property rights in the exercise of security right. For this approach is contradictory with dealing with jeonsegwon as real estate in the enforcement and violates Civil Execution Act Article 251 Section 1. And compared with the consistency showed in the legal system of Japan, this approach has to be modified. Second, the precedent has to be changed that a mortgagee is able to surrogate repayment of deposit instead of jeonsegwon when the duration of jeonsegwon is expired. The reason is that when the duration of jeonsegwon is expired, a usufructuary right ceases to exist and a security right continues to exist. AS long as a security right subsists, there is no room for surrogation. Moreover, repayment of deposit is not a substitute for jeonsegwon. As a result, only a security right is the object of the jeonsegwon mortgaged when it is created. Third, he problem is if repayment of deposit is entitled to be attached. According to the precedent dealing with repayment of deposit as conditional right, the right is not eligible to be attached. However, I am positive that the right is qualified to be attached because the nature of a usufructuary right can be consistent with repayment of deposit separated and transferred from jeonsegwon. Fourth, I think that Civil Execution Act § 246(1)(6) - which is on the repayment of deposit in house rental - has to be applied to the repayment of deposit in the case of jeonsegwon. The ground is the principle of justice that "such is the same, others different from". Fifth, an assignment order can be issued on repayment of deposit. I think it for valid the precedent that execution creditor has to burden the risk of not being object claim, though the attitude of the precedent is criticized for not demanding requirement about face value of object claim.