임대인 지위의 공동상속과 보증금반환의무 - 대법원 2021. 1. 28. 선고 2015다59801 판결 -

초록

Our Supreme Court decided that the joint heir's obligation to return the deposit is an indivisible obligation in the event of inheritance due to the death of the lessor while the lease contract continues. Before this judgment, it was unclear because there was no previous Supreme Court ruling. Previously, opinions were divided in the judgment of the lower courts, and in the lower court of the target judgment it was considered that it was divided and attributed to the heirs as a divisional obligation. We can say that the lower court approached according to the existing inheritance law, focusing on joint “inheritance”, and the Supreme Court approached according to the existing lease law, focusing on joint “lease”. Previously, Korean precedents have attempted to strengthen security by recognizing it as an indivisible obligation due to the nature of the obligation if the obligation borne by several people is in return for the inextricable profits or the price of inextricable fulfillment. A representative example of this is the judgment of the joint lessor's obligation to return the deposit as an indivisible obligation. It is understood that the conclusion of the target judgment is in line with that trend. I agree with the conclusion of the target judgment. Meanwhile, the transfer of the lessor's status to the heirs in accordance with the provisions of the Commercial Building Lease Protection Act was used as the basis for such judgment. However, as long as the lease contract persists, the status as a party to the contract may be inherited even if it is not under the above law. Contrary to the target judgment, there is no clear conclusion yet in the case where the lessor dies after the lease is terminated, but according to the purpose of the existing precedents, the obligation to return the lease deposit is a kind of indivisible obligation. It is expected that there will be precedents dealing with the nature of obligation to return the deposit in the future.

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