건물의 부분전세권자의 경매청구권에 관한 연구

Abstract

The right to lease on a deposit basis (Right to Jeonse, hereinafter, the right) has the traits of both the right to use of real property and the substantial right of a security. The person with the right to lease on a deposit basis (hereinafter, the person), thus, is classified as a security right holder. Under the Korean property law, a security right holder has a preferential payment right. The article 303 of the Korean Civil Code states that the preferential payment right of the person, while the article 318 states the right to request for an auction of the person which actualizes the preferential payment right. Various problems emerge on a relation between the right and the right holder’s another right to request for an auction. A typical example is how the person who has the right partially (hereinafter, the partial right) can actualize the preferential payment right by way of the right to request for an auction. The Korean Supreme Court has hardly affirmed the right to request for an auction, although the court has affirmed the right itself to the person who has the partial right. The author believes that the court makes wrong decisions. The author’s argument is like following: First, the person who has the partial right is also a security right holder because the article 303 gives the person the preferential payment right. Secondly, according to the article 318, the preferential payment right should be actualized by way of the right to request for an auction. Lastly, thus, the court has to affirm the request for the auction to the person who has the partial right. The court, however, has continuously turned down the person’s request for an auction by setting a strict standard: The court has said that the building which is the object of the auction must meet quite considerable level of independence. The person who has the partial right hardly meet the standard because the person merely has the right within the limit of a part of the building. In the mean time, the Korean Act on the Ownership and Management of Aggregate Buildings, not the Korean Civil Code, has lightened the standard of the independence. Notwithstanding, the court still keeps the strict standard. The author anticipates a new leading case, because all Acts and Codes in one legal system should be coherent to get a desirable level of legal exactness and stability.