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주택임차권의 대항력에 관한 연구

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Alternative Title
A Study on the Countervailing Force of Housing Leasehold Interest
Abstract
The Housing Leasehold Interest Protection Act (to be called as HLIPA hereafter) was enacted with the purpose to provide a practical stabilization of housing for the homeless populace as of March 5, 1981. The HLIPA stipulates that the qualification of housing and the subsequent registration of residency may only substitute a real right on the leasehold housing which authorizes the leaseholder to possess a countervailing force against third parties through the application of a corresponding registration of residency and a publicly disclosed contract. It stems from the special characteristic of housing lease contracts in Korea that involve large sums of key money deposits for leases, and subsequently, the most important matter is to give an institutional guaranty for the return payment of the deposits upon the termination of the corresponding leasehold contracts. The housing patterns in Korea have greatly changed reflecting our evolving social conditions. Subsequently, there have been seven amendments of the aforementioned law since its initial enactment, yet, it still remains to be unsatisfactory. In particular, there is no other method to surely and accurately interpret the countervailing force of housing leasehold interest and the mandatory institution to register the leasehold interest, except to rely on theories and judicial precedents due to the embedded ambiguity and unpreparedness in the stipulation of the law. Hence, the study aims to point out problems in interpreting corresponding laws and within the institutional itself by investigating the embedded principal of law and the related judicial precedents underlining the countervailing force of housing leasehold interest, and suggest alternatives for improvement based on the data collected through the research.
The study adopts the methodology of literature research that is to compare the collected data from various publications, precedent research papers, editions, and all other available data related to the system of housing lease interest. For the analysis of the practical area, the study supplements with a comparative research methodology that is to compare the judicial precedents and the countervailing force of housing lease institutions between Korea and other major countries.
Based on the aforementioned research methodologies, the study introduces the overall direction of the research by describing the purpose, scope, and methods of the study in the first chapter. In the second chapter, the paper reviews the legislation background and major contents, special stipulations, and legal characteristics of the Housing Leasehold Interest Protection Act, HLIPA, will be discussed. In the third chapter, the study compares the existing legal institutions in place for the countervailing force of the housing leasehold interest throughout major countries. The chapter also reviews the jurisprudence established concerning the countervailing force of the housing leasehold interest, the mandatory institution to register the leasehold interest, the rationale embedded in the preferential right for repayment that is given to the housing leasehold interest, and the prior-preferred right for repayment granted in the case of a small amount leasehold interest, as well as the order of priority treatment between the housing leaseholder who possesses the countervailing force and a pledge holder within the corresponding estate. In the forth chapter, the study reviews the issues of the housing leasehold interest and means for improvement. Finally, in the fifth chapter, the conclusion is drawn by summarizing the paper and the study intends to suggest a desirable le lege frenda, meaning what the law ought to be, as opposed to what the law is.
The major research contents in the study are as follows:
First, the Supreme Court requires the address on the residency registration, which is a causal requirement for the countervailing force, to be the same lot number, building number, and house number on the registration of the leased housing in order to be acknowledged as a valid means of public disclosure. Accordingly, a method of improvement is suggested. The procedure to register residency should be amended to allow the public notary of the registration to be exclusively made by the competent registration authority to which the location of the corresponding housing belongs institutionalizing the procedure of reporting the change of the current address at the time of moving in the competing office "dong", or village, with the same registered address. The procedure to register residency will have to be amended as mentioned above in order to prevent the occurring inconsistency between the registered address with the administrative office and the address with the office of jurisdiction.
Secondly, it is more rational to amend the front line of HLIPA, Article No. 3, Clause No. 1, the validity of the countervailing force, to be effective "as of the time" instead of "as of the following date", that is, to allow the registration of residency to be guarded by the countervailing force upon the time of immediate registration with the competing administrative office.
Thirdly, as a means to expedite the retrieval of the leaseholder's guaranty deposit when the leasehold interest has been registered, the legislation should consider granting the right to call for a public sale of the corresponding estate after passing a certain period of time upon termination of the lease contract, even without triggering causality for execution rights, which is the case concerning the right of key money rent as a real right.
Fourthly, the mandatory registration of the household interest is limited in availability to only a mentioned type of housing that is suitable for house registration. Hence, the leaseholder of unregistered housing or housing without permit cannot be covered by the mandatory institution to register the leasehold interest. Accordingly, there should be an institutional and legislative amendment that allows the leaseholder of such unregistered or not permitted housing to be able to apply for the protection covered by the mandatory institution with an additional attached application stipulating and in accordance with the reasons of application of Article No. 2, Clause No. 2, regulating the procedure of mandatory institution to register the leaseholder interest.
Fifthly, related to the problem of the small amount deposit system, the scope of the small amount and the amount needed for a prior-preferred right for repayment should be raised. In addition, the repayment amount is currently determined by ratio within the limit of one half of the housing value that is calculated based on the final bidding value. In reality, the housing bidding value declines by twenty or thirty percent each time the public bidding fails, leading to significant value deterioration. Therefore, it is necessary to expand the scope of the amount for a preferential right for repayment by making the value calculation base upon the initial appraisal value for the first public bidding or the publicly disclosed estate value.
The reason for the emphasis on the necessity of such specific measures of legislation is that the issues related to housing lease are understood as a characteristic of tasks reflecting society as a whole which have to be resolved before they are understood as individual matters. It is believed that the countervailing force of the leasehold interest will be able to secure a socially realistic and enhanced effectiveness only when the legislative measures mentioned above are resolved and in place.
Author(s)
김창우
Issued Date
2008
Awarded Date
2008. 2
Type
Dissertation
URI
http://dcoll.jejunu.ac.kr/jsp/common/DcLoOrgPer.jsp?sItemId=000000004192
Alternative Author(s)
Kim, Chang Woo
Affiliation
제주대학교 대학원
Department
대학원 법학과
Advisor
한삼인
Table Of Contents
제1장 서론 = 1
제1절 연구의 목적 = 1
제2절 연구의 범위 및 방법 = 2
제2장 주택임대차제도의 주요 법리 = 4
제1절 주택임대차보호법의 입법배경 및 주요내용 = 4
1. 입법배경 = 4
2. 주요내용 = 6
제2절 주택임차권의 특질 = 7
1. 주택임차권의 의의 = 7
2. 주택임대차보호법의 법적성격 = 8
제3장 주택임차권의 대항력의 법리 = 13
제1절 주택임차권의 대항력에 관한 주요 국가의 법제 = 13
1. 독일 = 13
2. 영국 = 17
3. 일본 = 20
4. 함의 = 23
제2절 주택임대차보호법상의 대항력 = 25
1. 대항력의 의의 = 25
2. 대항력의 취득요건 = 26
3. 대항력의 발생시기 = 42
4. 대항력의 존속요건 = 43
5. 대항력의 내용 = 45
제3절 임차권등기명령제도 = 54
1. 입법취지 = 54
2. 임차권등기명령의 요건 = 55
3. 임차권등기명령의 효과 = 58
4. 정리 = 60
제4절 주택임차인의 우선변제권 = 61
1. 의의 = 61
2. 확정일자부 임차인의 우선변제권 = 62
3. 우선변제권의 내용 = 66
4. 관련 판례의 검토 = 69
제5절 소액임차인의 최우선변제권 = 74
1. 입법취지 = 74
2. 최우선변제권의 내용 = 74
3. 관련 판례의 검토 = 82
4. 정리 = 83
제4장 주택임차권의 대항력상의 문제점과 개선방안 = 84
제1절 문제점 = 84
1. 대항력의 취득요건인 주민등록에 관한 문제 = 84
2. 대항력의 발생시기상의 문제 = 88
3. 임차권등기명령제도상의 문제 = 90
제2절 개선방안 = 91
1. 대항력의 취득요건상의 주민등록 절차 개선 = 91
2. 대항력의 발생시기의 보완 = 92
3. 임차권등기명령제도의 보완 = 93
4. 기타 = 95
제5장 결론 = 98
참고문헌 = 101
ABSTRACT = 105
Degree
Master
Publisher
제주대학교 대학원
Citation
김창우. (2008). 주택임차권의 대항력에 관한 연구
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