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

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.