전세권설정자와 전세권저당권자의 이익 충돌 - 대법원 2014. 10. 27. 선고 2013다91672 판결 -

초록

The party who gave a leasehold right has received a security deposit from the leaseholder. The lessor should return the deposit when the leasehold right ceases to exist. Thus, the lessor can easily decide to lend money to the leaseholder, because the lessor can expect to offset the money lent to the leaseholder against the deposit. On the other hand, another party who acquired mortgage on the leasehold right also could decide to lend money to the leaseholder, because he/she expects to get a preferential payment from the deposit. The ruling of the Supreme Court of Korea, issued on 27th October, 2014 (case number 2013da91673) deals with the conflict of interests over the return of the security deposit between the party who gave a leasehold right and the party who acquired mortgage on the leasehold right. In practice, the one who acquired mortgage on the leasehold right should exercise his/her right according to the real subrogation theory. The expectation of offset should be limited by the time those who want to offset could be conscious that something which does not allow offset happens. Thus, I think the problem of the conflict of interests dealt in this article should be solved in harmony with these positions (the real subrogation theory and the time limit of offset) previously acknowledged by the Korean jurisprudence. Fundamentally, a legislative reform should be initiated so that the one who acquired mortgage on a leasehold right can directly request the person holding the deposit (who gave the leasehold right to the leaseholder) to return the deposit when the leasehold right ceases to exist.

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