주택임대차보호법상 소액임차인의 최우선변제권에 대한 제한

Abstract

The purpose of this article is to study on the restriction of the most preferential repayment right of minimal deposit in the House Leasing Protection Act. Any lessee who has met the requirements for opposing power and obtained the fixed date on the lease contract document, shall be entitled to receive the repayment of the deposit from the converted price of the leased house, in preference to any junior obligors and other creditors, at the time of an auction as provided by the Civil Execution Act and a public sale as prescribed by the National Tax Collection Act. The lessee shall be entitled to receive a repayment of a specified amount of the deposit in preference to other persons having the security rights in the leased house, if the lessee has completed delivery of a house and the resident registration. However, according to the judicial precedent of the Supreme Court, the right is limited by the lawsuit for dividends objection to the pretense tenant and the revocation by obligee. The lawsuit for dividends objection to the pretense tenant and the revocation by obligee, there is a difference in the burden of proof. In the case of the pretense tenant, the creditor must prove that the tenant is the pretense tenant. But in the case of the revocation by obligee, the tenant must prove that the lease was intended to be used to house. Thus the Supreme court's dicision to the restriction of the most preferential repayment right of minimal deposit by the obligee's revocation should be carefully analyzed.