부동산임차권의 승계에 따른 사실혼배우자의 주거권 보호

Abstract

The state of de facto marriage means that even if both spouses show their intention of getting married with each other and actually share their life together as a husband and a wife, their relationship is not recognized as the legal marriage, since they do not satisfy the typical legal conditions related to the registration of marriage. The de facto spouses inevitably need to possess real estate (housing) in order to manage their marriage. Even if it is not the only way which is available, it can be said that such possession depends on the lease of real estate as long as the social state is considered. Also, it can be said that the lease of real estate is the essential basis of survival for the management of marriage by the de facto spouses. According to the lease of real estate which is concluded in such a state, it is possible to ask for the return of the housing rental deposit which has been paid to the lessor when the contract ends. Since the right to ask for the housing rental deposit has the characteristic of the property right,it is subject to inheritance when the lessee who is the party involved in the contract passes away. However, according to the current civil law, the living de facto spouse is not included in the range of heirs. Regarding such a condition, there have been many positive and negative opinions for a long time in regard to the possibility of inheritance according to the theory of interpretation,while there have been precedents against it. As a result, the destiny of the living de facto spouse is subject to the judgment of the legal heir in regard to the right of residence for the rental housing which has been possessed for the marriage with the lessee. In other words, according to the laws in Korea, the real estate lease belongs to the property right, it is possible for the heir who inherits all the related rights and duties when the lessee passes away to deprive the living de facto spouse of his or her right of residence. Fortunately, the legal system in Korea provides the basis for the inheritance of a lease by the living de facto spouse who has had the relationship of de facto marriage with the deceased de facto spouse according to the Housing Lease Protection Law. According to the law, when the lessee passes away without having any heir, the de facto spouse who has had the relationship of de facto marriage in the subject house inherits the rights and duties of the lessee. If the heir of the deceased de facto spouse does not live in the subject house, the living de facto spouse who has lived in the subject house and the close relatives including brothers and sisters can jointly inherit the rights and duties of the lessee. However, such succession of rights enables the successor of the lease to possess the bonds and debts generated by the lessee in regard to the lease. In such a case,the successor specified in the above law can show his or her intention of objection to the lessor in regard to the succession of the lease within one month, in order to give up the succession of bonds and debts. Therefore, the legal system in Korea specifies certain conditions for the living de facto spouse as an exceptional case of civil law, recognizing his or her right of residence for the house in which he or she has lived with the deceased de facto spouse through the succession of the lease. However, the regulations of the Housing Lease Protection Law are not detailed,most of them are based on the interpretation of the precedents. Also, Article 9 of the same law requires such interpretation. However, there are many different opinions in regard to the interpretation. Therefore, through the approach based on the theory of interpretation for Article 9 of the Housing Lease Protection Law, this paper focuses on several problems related to the protection of the right of residence by the living de facto spouse.