임대차보증금반환채권의 소멸시효 - 대법원 2020. 7. 9. 선고 2016다244224, 244231 판결의 검토를 중심으로 -

Abstract

In a lease under Housing Lease Protection Act, if the lessee continues to occupy the object based on simultaneous performance defense after the end of lease, does the extinctive prescription of the lease deposit return claim proceed? On this issue, the recent Supreme Court decision differed from the original judgment and judged that the extinctive prescription did not proceed. The Supreme Court decision presented several theoretical grounds. First, if it can be evaluated that the lessee continues to exercise the lease deposit return claim, the extinctive prescription does not proceed. After the termination of the lease, the lessee's continuous possession of the object on the basis of the right to simultaneous performance defense was based on the authority to return the deposit to the lessor, and it can be seen as a clear expression of the continuous exercise of the right to get the deposit back. Second, since the lessor's right to claim delivery of the object, which is in a simultaneous performance relationship with the lessee's deposit return claim, is based on real rights such as ownership, it rarely expires by prescription regardless of the lessor’s active exercise of rights. Therefore, even if the extinctive prescription does not proceed with the lessee's deposit return claim for occupying the object to return the deposit after the lease is terminated, it is not contrary to the balance of the profits between the parties involved in this claim. Third, if a lessee who has not received a deposit return after the termination of the lease occupies the object, the legal lease relationship is maintained in accordance with Article 4 (2) of Housing Lease Protection Act. Nevertheless, if it is assumed that the lessee's deposit return claim can be extinguished by the prescription, this will result in undermining the legislative purpose of this regulation, which is unfair. The conclusion of the Supreme Court decision is justified. However, objections have been raised to the theoretical basis of the judgment, and this article focused on this point.