전세권과 허위표시

• 영문명: ‘Chonsegwon and sham transaction
• 발행기관: 한국민사법학회
• 저자명: 최준규(Choi Joon-kyu)
• 간행물 정보: 『민사법학』제63-1호, 361~396쪽, 전체 36쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2013.06.30

영문 초록

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.

목차

[사안의 개요]

[소송의 경과]

[연 구]

Ⅰ. 서론

Ⅱ. 전세권설정계약과 허위표시

Ⅲ. 대상판결의 단계별 분석 및 다른 문제 상황과의 비교

Ⅳ. 임차인의 점유가 갖는 의미

Ⅴ. 근저당권부 채권 가압류의 경우

Ⅵ. 결론에 갈음하여

참고문헌

키워드

전세권 전세금반환청구에 대한 공제항변 전세금반환청구에 대한 상계항변 허위표시 민법 제108조 제2항 유추적용 ‘Chonsegwon deduction defense against claiming return for deposit money about ‘Chonsegwon set-off defense against claiming return for deposit money about ‘Chonsegwon sham transaction analogical application of Article 108 (2) of the Korean Civil Code