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전세권과 허위표시 - 대법원 2010. 3. 25. 선고 2009다35743 판결 -

Title
전세권과 허위표시 - 대법원 2010. 3. 25. 선고 2009다35743 판결 -
Author
최준규
Keywords
전세권; 전세금반환청구에 대한 공제항변; 전세금반환청구에 대한 상계항변; 허위표시; 민법 제108조 제2항 유추적용
Issue Date
2013-06
Publisher
한국민사법학회
Citation
The Korean Journal of Civil Law , 2013, 63(63-1), p.361 - 396
Abstract
At the Supreme Court case(2009da35743), lease contract with monthly rent and deposit money was made for the building. And ‘Chonsegwon" was registrated. In Korean civil law, Chonsegwon is the property right and designed on the deposit money with no periodical rent. So in this case, parties made ‘Chonsegwon contract"(contract that aims to create ‘Chonsegwon" as property right) that included only the deposit money. That contract is sham transaction, because actually parties did conclude lease contract with "monthly rent".After some time, parties made new lease contract without deposit money, so the previous deposit money was returned to the lessee and the lessee continued to occupy the building as before. Because the deposit money had been returned, ‘Chonsegwon" as the security right for that money did not exist more. However ‘Chonsegwon" registration was not removed by the parties.The Supreme Court case says, the person - who provisionally seized the claim for the deposit money that was recorded in ‘Chonsegwon" registration but no longer in existence - is the third party at sham transaction(‘Chonsegwon contract"), so he can acquire that claim though that claim does not actually exist.I think this conclusion is right, but court"s reasoning needs to be explained and supplemented. In this case the concerned sham transaction is not only about the monthly rent, but also the deposit money. Deposit money in ‘Chonsegwon contract" was larger than actual deposit money in lease contract. So the third party"s reliance about deposit money can be protected on the basis of the concerned sham transaction. But if the concerned sham transaction is only about the existence of the monthly rent, such reasoning can not be applied. Then the existence of false registration itself after the return of deposit money should be the main standard for the protection of the third party"s reliance about deposit money. And I think such person can be protected by analogical application of Article 108 (2) of the Korean Civil Code, when the owner(lessor) neglected to remove the false registration for some time although he knew the registration is not true.In this article, I also deal with the matter about set-off or deduction defense against seizure"s or ‘Chonsegwon" mortgagee"s claiming return for deposit money.
URI
http://www.dbpia.co.kr/Journal/ArticleDetail/NODE02212763http://hdl.handle.net/20.500.11754/45138
ISSN
1226-5004
Appears in Collections:
SCHOOL OF LAW[S](법학전문대학원) > Hanyang University Law School(법학전문대학원) > Articles
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