전세권의 본질과 전세금반환채권의 양도

The right to registered lease on deposit basis system, stipulated in the current Civil Code, is not to hold house in pledge but to create the real right with a view to enhance the usufruct of house lease system that has been prevalent from the late Joseon Dynasty. With the legalization of the system that has involved pledge or mortgage since the Japanese occupation period, however, there has been no gainsaying the nature of mortgage in addition to its original purposes, i.e., rental and profit making. Hereat, the security right has been considerably restricted due to usufruct, and besides, the restriction is applied even to the common traits of the right of hypothecation such as appendant nature, contingency and inseparability. Considering that the right to registered lease on deposit basis is based on usufruct, it may be reasonable not to accept the separate transfer of security deposit withdrawal obligation by reason of the appendant nature of the right of hypothecation. Accordingly, it may be possible to transfer the security deposit withdrawal obligation even while the right to lease on a deposit basis subsists. But in this case, usufruct is still valid, wherefore the right to lease on a deposit basis cannot be completely transferred until usufruct becomes ineffective. Thus, the transferee of security deposit withdrawal obligation may not register it though it includes the right to lease on a deposit basis, and additionally the transferee is in a position of a common creditor as to the third party, and moreover cannot exercise seniority and the claim for auction until the registration of the right to lease on a deposit basis is transferred.