승계집행문부여의 소와 후소의 소의 이익에 대한 검토 - 대법원 2022. 3. 17. 선고 2021다210720 판결을 중심으로

Examination of the Succession Execution Order Lawsuit and the Benefit of the Lawsuit : Focused on the Supreme Court Decision 2021Da210720, Delivered on March 17, 2022

The judgment in this case, even when considering the content of the ruling, undoubtedly applies to very exceptional circumstances. This is because even those who support the judgment point out that the legal principles established in this case should be applied minimally. The legal reasoning regarding the succession of the landlord’s position in this case is largely persuasive. The court developed a thorough legal argument aimed at protecting the tenant, particularly securing the right to claim the return of the security deposit, in accordance with the purpose of Article 3(4) of the Housing Lease Protection Act. Due to the invalidation of the nominal trust agreement, the rights in rem (real rights) change, and as a result, the nominal trustee's position is transferred to the nominal trustor. In this case, the tenant, as a third party, should be protected, which aligns with the intent of the relevant laws and the interpretation of the legal provisions. The application of legal principles concerning the successors subsequent to a closure of pleadings after the conclusion of the oral arguments also does not lead to a significantly different conclusion. However, in this case, since the landlord's position was fully transferred from the non-party to the defendant, corresponding to a successor under substantive law, there was no need to explicitly consider the right to claim based on rights in rem. The most crucial issue was the matter of the legitimate interest to sue. First, there is no dispute that the plaintiff in this case had two options: the procedure for granting a succession execution order and the subsequent claim to repay deposit of lease. It appears that the court, considering the reference judgment(the Supreme Court Decision 93Da53955, Delivered on May 10, 1994) as a significant basis, recognized the legitimate interest to sue of the subsequent lawsuit. However, the reference judgment is not a precedent that acknowledges bypassing or circumventing the procedure for granting a succession execution order. Given that the concept of the legitimate interest to sue dictates following a special remedial procedure if one exists, in cases like this, the procedure for granting a succession execution order, which can resolve the issue of enforcement, should be prioritized. The court in this case stated that even if the plaintiff did not use the procedure for granting a succession execution order, the interest of the subsequent lawsuit could not be denied if, due to the progression of the subsequent lawsuit, the situation reached the level of utilizing the procedure for granting a succession execution order. However, there are strong opinions questioning whether this criterion has provided sufficient precedent for future cases. I also agree with this opinion, and I believe that, at the very least, the procedure for granting a succession execution order should first be carried out, and if it proves inadequate, the subsequent lawsuit for performance should be considered supplementary. The reference judgment was already a very exceptional case, so it is not appropriate to extend the exception further through it. However, this does not mean that the subsequent lawsuit for performance should be unconditionally dismissed for lack of interest. The court should guide the parties to select an appropriate remedy through duty of elucidation. From the plaintiff’s perspective, it is possible to devise a method of filing a lawsuit by combining the succession execution order and the performance claim as an alternative joinder, while complying with the exclusive venue provision.