주택임차인의 점유와 임대차보증금반환채권의 소멸시효- 대법원 2020. 7. 9. 선고 2016다244224, 244231 판결 -

Abstract

The Supreme Court recently ruled in Decision 2016da244224, 244231 sentenced on July 9, 2020 (hereinafter 'this Decision') for the first time that in the case of the residential tenancy deposit refund claim, which is protected by the Residential Tenancy Protection Act, if the tenant 'occupies' the leased object to receive the deposit back after the lease period is over, the statute of limitations on the deposit refund claim does not proceed. Interestingly, this decision derived the conclusion not from the previously recognized exceptions to the statute of limitations, but from the argument of the existing precedents that the buyer's right to request ownership transfer registration is not subject to the statute of limitations when the buyer occupies the purchased object, focusing on the commonality of 'occupancy'. In other words, just as the existing precedents presented the existence of the exercise of rights, objective measure of benefit, and transactional reality as arguments, this decision held that the statute of limitations on the deposit refund claim does not proceed based on (1) the fact of occupying the object based on the defense of concurrent performance, which can be regarded as the exercise of the right over tenancy deposit refund, (2) balance of interests between the parties, and (3) the legislative purpose of Article 4 (2) of the Residential Tenancy Protection Act. However, the arguments presented by this Decision are not sufficient to support that conclusion, because it overlooked the fact that (1) the jurisprudence of the precedents was formulated in a transitional situation in which the Korean Civil Act changed its attitude from consensualism to registration-required principle regarding transfers of property rights and (2) the nature of deposit refund claim and that of the buyer's right to request for ownership transfer registration are fundamentally different. Rather, the case of this decision is one where a viable solution can be found within the existing institution of statute of limitations. In other words, even after the lease is over, the legal relationship is maintained according to Article 4(2) of the Residential Tenancy Protection Act, and the tenant is obligated to pay the legal rent to the lessor. However, in the case of leases where all or part of the rent is covered by interest on the deposit, the legal rent is offset by the interest on the deposit, so the partial repayment of the lessor can be acknowledged. In the end, there is no problem in thinking that the statute of limitations on the tenancy deposit refund claim can be stopped because such repayments fall under the 'acknowledgment', which stops the statute of limitations stipulated by the Civil Act. By adopting such a theoretical approach, it is possible to clearly explain the reason the statute of limitations is not stopped when the tenant completes the registration of the lease according to the leasehold registration order without occupying the object. Because the object is not occupied, the interest on the deposit is not applied to the rent. As partial repayment is not recognized, the interruption of the statute of limitations cannot be recognized. Therefore, this approach makes it possible to explain another Supreme Court decision that lease registration pursuant to the lease right registration order for the same purpose of tenancy deposit recovery does not stop the statute of limitations without contradicting this decision.