전세권과 전세금반환채권에 대한 압류

Abstract

Acording to judicial precedents, when the period of existence of chonseright(right ofregistered lease on deposit basis) has expired, power of a usufructuary right expires, butthe power of a right guaranted by security exists until the security deposit is returned. Therefore, the creditor of the person having chonseright may seize the chonseright or aclaim for refund of security deposit if the period of existence has not expired. If a claimfor refund of security deposit has ben seized, the efect wil extend to chonseright basedon the apendant nature of a right guaranted by security. In general, the compulsoryexecution of chonseright should be executed by means of encashment, such as a transferorder or a sale order, rather than a real estate auction, as the chonseright is regarded“other property rights.” If a mortgage is created as to chonseright, the execution of themortgage uses a real estate auction as to the chonseright itself. However, it is undesirableto have diferent procedures depending on whether a mortgage for chonseright uses theenforcement of a security right or compulsory execution. This could undermine thestabilty of the procedure. Consequently, Article 40 of the Civil Enforcement Rules shouldbe analogicaly aplied to handle chonseright as real estate in the compulsory executionof chonseright. Acording to judicial precedents, in the case of a mortgage forchonseright, a mortgage may exercise a right of subrogation after the period of existenceof the chonseright expires, as to a claim for refund of security deposit, which can beregarded as existing in substiution of chonseright. However, the precedents aceptingsubrogation are unreasonable because the claim for refund of security deposit is anesential part of chonseright, not a right that is newly generated as a result of the losof chonseright, etc. A mortgage for chonseright, which has only the power of a rightguaranted by security after the period of existence has expired, is similar in nature toa pledge right on a claim for refund of security deposit. Therefore, a mortgage ofchonseright may directly colect the claim for refund of security deposit of the personhaving chonseright by analogicaly aplying Article 353 (1) of the Civil Act or exercisea right of subrogation as to the right to request auction of the person having chonserightunder Article 404 of the Act. As a real right granted by way of security canot beasigned separately from its secured claim and also canot be made the security ofanother claim (Article 361 of the Civil Act). Therefore, as for chonseright whose periodof existence has expired, you may not seizure only chonseright separately from itssecured claim, which is the claim for refund of security deposit. In the case of the seizureof a claim for refund of security deposit, the efect wil extend to the chonseright.