목적물의 후발적 멸실이 매매ㆍ임대차에 미치는 영향

Abstract

According to the traditional view, when the leased property is partially damaged or destroyed without any fault of the lessee, the lessee can assert a claim for the diminished leasehold interest. Or, in case where the purpose of lease contract is frustrated with the remaining interest, the lessee can seek cancellation of the contract. However, under the same view, if the leasehold estate is damaged or destroyed due to the fault of the lessee, the lessee is barred from making the claim. Further, where the subject of the lease contract is completely destroyed, the lease is thereby cancelled. In such cases, the party with fault is liable to the other party for compensation. However, (1) in the cases of complete destruction, there is no ground for automatic termination of contract -- contract terminations are chages of legal relationships, and such changes require mutual consents or relevant statutory provisions, but in such cases, there are neither consent nor statutory provisions for such terminations, (2) there can be overprotection for the lessees at the expense of the lessors, if the system allows a lessee who intentionally destroys the subject of the contract to terminate the lease with the willingness to pay the compensations to be received from the lease payment obligations remaining under the original leases. Moreover, (3) a third party creditor to the lessor may be injured if the lessor cannot collect any further payments from the lessee, if the lessor’s obligation to the creditor is secured with the future lease payments from the lessee due to the termination of the contract for the complete destruction of the subject. In light of the above, this paper maintains that, for partial destruction cases, section 627 shall apply. As for complete destruction or partial destructions due to the fault of the lessee, general termination theories and allocation of risks theory and section 627 shall be applied to the issues involving the lessee’s duty to return the property at the end of the lease and the duty to pay lease payments and the lessor’s duty to return deposits.