임대차에서의 공제에 관하여

Abstract

By definition, the term “deduction” means subtracting a certain amount of money or quantity from a share to be received. The term has been used in a variety of laws, mostly on the basis of its dictionary definition. In the legal context of leasing, however, a body of legal principles has been established through a number of judicial precedents over many years, to the point the term is no longer confined to its literal meaning of subtracting. The relations involving leases often lead to the creation of legal phenomena clearly different from other legal relations as a result of deduction instead of setoff. For example, Article 497 of the Civil Act concerning setoff does not apply to leases, and various restrictions on the execution of the right to setoff do not hold true with revival cases. As a result, lessors enjoy preferential protection before other creditors. A range of conflicting opinions exist regarding the grounds for lessors’ priority—that is, the grounds for the occurrence of deduction effects in lease relationships. Since no legal provisions are stipulated with regard to this issue, the opinions of relevant parties must be interpreted as applicable grounds. Currently, if the condition precedent is achieved that no default will occur on the part of a lessee from the point the relevant lease terminates to the point the subject matter is delivered, it is seen that the both parties involved have agreed to generate a refund claim of the lease security deposit on the part concerned. In general, the amount equivalent to the lessor’s claim is deemed deducted in the course of calculating the specific scope of the refund claim of the lease security deposit to be created. By examining a number of rulings on lease deduction, this study reviewed whether the precedents have been in conformity to this presumed agreement of both parties and the assumption on the deduction procedures. In particular, this study focused on whether the Supreme Court is going beyond the boundary of the dictionary meaning of the term “deduction” and is actively formulating its own legal principles.