압류되거나 양도된 차임채권도 임대차보증금에서 공제되는지에 관한 연구

Abstract

Deposit is the money to make lessor's claim secure. In almost all lease cases, lessee gives deposit to lessor. But Civil Law has no article on deposit of lease. So many theories are developed on How to secure the performance of lessee's duty by deposit money. The main stream of the theories explains that lessee's right on repayment of deposit is subject to condition precedent that there is no delay of lessee's performance. So if there is any delay of paying rent, lessee's right on repayment doesn't take effect within same amount of money. And the theory also explains like next three sentences. "Though lessor's claim for rent is seized by creditor of lessor or it is transferred to other people, the nature of the claim is not changed. And if lessee delays paying money to the creditor who seized the claim or took claim by transfer, the condition precedent doesn't be fulfilled. So lessee's right to repay the deposit doesn't take effect." But I don't agree that theory. Because the main purpose to give and take deposit money is making it easier to settle up between lessor and lessee. On deposit money there is no intention that they settle up with any other people. I think only the claim that lessor has can be deducted from deposit money. So if the creditor of lessor got only issuance of a collection order on claim for rent, and lessee doesn't pay it to the creditor, lessor can deduct the same amount of money with the rent from deposit. But if the creditor of lessor got issuance of an assignment of order or if lessor transfer the claim for rent to others, lessor can't deduct it from deposit.