주택임대차보호법상 대항력 있는 임차보증금반환채권에 대한 가압류의 효력

Abstract

This is a commentary on the Supreme Court Full Panel Decision 2011Da49523 decided Jan. 17, 2013, regarding the effect of provisional seizure against a security deposit　repayment claim with opposing power in accordance with the House Leasing Protection Act. The main issues of this care is: considering that Article 3 (3) of the House Leasing Protection Act provides that “the transferee (including the person who has succeeded to the right to lease) of a leased house shall be deemed to have succeeded to the status of the lessor;” whether the transferee of a housing — which was transferred to the individual following provisional seizure of a lessee's security deposit repayment claim in a housing lease — succeeds the statuses of the lessor, and also that of the third party debtor. There are three opinions regarding the aforementioned issue: the succession approval approach, which acknowledges third party debtor status succession, and therefore the transferee becomes the third party debtor to the provisional seizure; the succession denial approach, which denies third party debtor status succession; and finally, the provisional seizure termination approach, which denies third party debtor status succession, and perceives that the provisional seizure of claim order has lapsed because the order's claim to be seized is terminated due to the transfer, thus the effects of the provisional seizure does not extend to the transferor. The majority opinion of Supreme Court en banc Decision 2011Da49523 took the succession approval approach, and declared a significant exception on the general effect of provisional seizure against pecuniary claims, on grounds that: when a leased housing is transferred after a lessee's security deposit repayment claim has been provisionally seized during a lease with requirements for opposing power; the effect of the provisional seizure only extends to the transferee, who has succeeded the lessor's status in accordance with Article 3 (3) of the House Leasing Protection Act. Selecting the succession approval approach — as the majority opinion did — does create the issue of how to perceive the effect of a fautless or well — intended transferee's security deposit repayment to the lessee. However, this was not the subject of Decision 2011Da49523, and thus there were no determinations regarding the issue. Currently there are two conflicting opinions on the aforementioned issue: one that acknowledges the repayment effect to a quasi possessor, and the other which denies the effect.