차임증액청구가 인용된 경우 증액된 차임부분에 대한 지체책임의 시기에 관하여

• 영문명: A Study on the Time of Responsibility for the Delay on the Rental Fee Increased in the Case that the Demand the Increase of Rent is Recognized
• 발행기관: 중앙대학교 법학연구원
• 저자명: 황경웅(Hwang Kyung-Uoong)
• 간행물 정보: 『법학논문집』法學論文集 第30輯 第2號, 305~319쪽, 전체 15쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2006.12.30

영문 초록

  The trial court of the judgment for determining whether from when the tenant shall be responsible for the delay on the rental fee increased due to exercise the demand the increase of rent, Where the existing rental fee is paid, the trial court decided that the tenant shall be responsible for the rental payment of damage arise out of delay from the day after the decision on fixing the definite amount of the increased rental fee in the light of that the tenant shall not be responsible for delay, even though the tenant shall not pay the increased rental fee. While on the other, the appellate court decided that the manifestation of intention of the increase of rental fee comes into effect after the time tenant receives the manifestation of intention.
  However, Though the payment of delay generally requires that it should be due to reasons attributable to the obligor as damages due to default, In the case of Monetary Debt, article 397, para. 1 of Civil Code(Special Provisions for Monetary Debt) prescribes The amount of the damages for failure to perform any obligation for the delivery of any money shall be determined with reference to the statutory interest rate(the agreed interest rate shall prevail), and The obligor may not raise the defense of non fault with respect to the damages referred to in paragraph l(para. 2 of the article).
  The civil code is applied as the rental fee debt be considered to monetary debt. therefore the amount of the damages of the increasing rental fee is came from when the amount is increased. In other words, the manifestation of intention for the increase of rental fee comes into effect after the time tenant receives the manifestation of intention.
  Accordingly, the decision of the trial court is not reasonable, but the decision of the appellate court is reasonable. However, Though it has become responsible for delay in performance due to reasons attributable to the obligor, the special provisions for monetary debt is applied as the rental fee debt be considered to monetary debt. Therefore the amount of the damages of the increasing rental fee is came from without the reasons attributable to the obligor. Appellate court decided that the obligor shall be responsible for the delay as soon as the increase of rental fee comes into effect. Such a framework of theory leaves something to be desired.

목차

Ⅰ. 서론
Ⅱ. 차임증액청구권의 성질과 효력의 발생시기
Ⅲ. 지체책임의 발생요건
Ⅳ. 대상판결의 지체책임의 논거에 대한 검토
Ⅴ. 결론
〈Abstract〉

키워드

금전채무(monetary debt) 지연이자(late charge) 차임증액청구권(claim for increase of rent) 채무불이행(breach of performance) 이행지체(delayed for payment)