개인회생절차 상 임대차보증금반환채권의 보호에 관한 연구

Abstract

When liabilities of a debtor exceed a liability property, a debtor falls into insolvency. There are many ways that a debtor can take, but there is a method of realizing and allocating the property of a debtor by adjusting legal relation of the stakeholder such as a creditor through bankruptcy or rehabilitation. A law about debtor rehabilitation and bankruptcy regulates this procedure, and it is commonly called the Consolidated Insolvency Act. Consolidated insolvency procedure can be divided into rehabilitation, individual rehabilitation, and individual bankruptcy. Individual rehabilitation applies regulations of individual bankruptcy unless it does not violates the purpose. Individual rehabilitation procedure realizes positive property that a debtor has and distributes it to creditors, and the rest liabilities are exempted. However, there is a case that debtors have priority and it is a bond with a security right. Secured mortgage is divided into consensual liens and statutory liens under a civil law; consensual liens include leasehold right, pledge, (flexible)mortgage, provisional registration security, mortgage of transfer, and mortgage of sale and statutory liens include lien, legal mortgage, tax liability, wage privilege bond, and deposit under house (commercial building) lease protection act. In the Consolidated Insolvency Act. only leasehold right, lien, pledge, (flexible)mortgage, and movables and movables·security right for an obligation under the law about security for an obligation among contract security real rights are recognized as right of separation. Other rights are classified into individual rehabilitation superior obligation or normal bond without a security right. A creditor that has secured mortgage right under the Consolidated Insolvency Act and a general creditor without mortgage show clear difference in its status according to the existence of right of separation. The problem that this study will review in priority is about deposit of a house (commercial building) lessee. In other words, lease deposit return liability that a lessee of house and commercial building has is treated similar as mortgage, lien, the right of pledge, and leasehold rights and classified as a bond conforming to right of separation. Therefore, there is a problem that a lessee can’t be protected properly in individual rehabilitation procedure as lease deposit return liability is treated under right of separation even though it is not intrinsic right of separation but does not have right of bidding request. There are few opinions to solve these irrationalities. However, discussion on the status of a lessee on individual rehabilitation procedure is laid aside in Consolidated Insolvency Act revision. Therefore, this study is to look into problems of Consolidated Insolvency Act revision that is legislated and announced on the date of July 15, 2009 along with questions about the status of a lessee on individual rehabilitation procedure.