미등기주택 임차인의 대지환가대금에 대한 우선변제권

Priority Repayment Right for Land Proceeds of Unregistered House

The house lease protection law is the special law of the civil law that is established to protect the lessee, the economic disadvantaged, for the purpose of the safety of the residential life of the nation. Under the present situation that the lease security in the large amount is exchanged like our country, the biggest concern of the lessee is whether the lease security money can be repaid when the lease period is expired. In order that such lease security money may be surely repaid, the law recognizes the opposing power and the priority repayment right for the lessee, and such priority repayment right is the unique system existing only in our country. The objective legal case has judged the important decision for the priority repayment right. Firstly, it recognizes the priority repayment right even to the lessee of the unregistered house. It is wholly agreed. The application objective of this law gives no difference between the registered house and the unregistered one, and the previous legal case recognized the opposing power for the unregistered house only but it is not sufficient to protect the lessee with the opposing power only. Also, if the priority repayment right is not recognized, the house owner and the land owner will take the illegal benefit through the lessee s sacrifice, and even if the priority repayment right is recognized, because it is not regarded that the benefit of the mortgagee, who establishes the security right by previously recognizing the unregistered house and existence of the lessee, will be infringed. Secondly, in case the house owner and the land owner are different, it is said that the priority repayment right will be recognized in the proceeds despite whoever the land owner may be. Because it is said that the priority repayment right is the legal security. However, it is accepted that the priority repayment right is recognized in the objective leading case but it is difficult to agree to it as there is any problem in composition of the legal principles. The priority repayment right has the characteristics of the legal mortgage but it is difficult to be regarded as the right for anybody to assert it to the end, and if so, the benefit with other interest concerned can not help being contradictory. In the personal viewpoint, even if the house owner and the land owner are different, the priority repayment right shall be recognized only in case the land owner is under the position of the transferee of the leased house. In order that the auction objective may receive the allotment from the land amount, the lessee shall be able to oppose against the land owner through the repayment claim for lease security money, and for this, the land owner shall be in the position of the transferee of the leased house. Finally, as the proposal of legislative theory, this law protects the lessee as the special law of the civil law, but on the other hand, it shall be harmonized with the benefit of other interests concerned. Despite there were a lot of disputes and legal discussions for this law as far, there was much disputable room in the interpretation as this law consists of 13 provisions merely. As for the second disputable case for the objective legal one also, Term 2, Clause 5 of the lease protective law for the commerce- residence purposed house regulates that the priority repayment right shall be recognized only in case of the land owned by the lessor. Therefore, in order that the priority repayment right may be recognized in the land sales amount under this law, the law shall be legislated only to the case that the land is the one owned by the lessor of the leased house (inclusive of the transferee of the leased house), and therefore, it shall let them enjoy the stable residential life by removing the room f