보증금반환채권의 가압류와 임대인지위의 승계 - 대법원 2013. 1. 17. 선고 2011다49523 판결 -

Para. 3 of Article 3 of the current Housing Lease Protection Act stipulates that it is regarded that the assignee of a leased housing succeeds to the status of a lessor, and Para. 2 of Article 3 of the Commercial Building Lease Protection Act also provides that succession of a lessor status is obligatorily applicable succession in law. In this connection, in the event that a leased housing is assigned in such state that a lessee's lease deposit claims are provisionally seized, it matters as to whether or not the assignee of the housing succeeds to the status of a garnishee for the provisional attachment of the claims, under the execution law, despite that there is succession of a lessor status in a substantial law. In relation with such issue, a majority opinion of a subject judgement, Supreme Court en bank Decision 2011DA49523 Decided Jan. 17, 2013 teaches that if a leased housing is assigned in such state that a lessee's lease deposit claims are provisionally seized, the assignee of the housing succeeds to the status of a garnishee for the provisional attachment of the claims, and the provisional attachment obligee may claim the effects of said provisional seizure only for the assignee rather than the assignor. In the meantime, a dissenting opinion of the subject judgement teaches that as the Civil Execution Act does not know the concept of 'succession of a garnishee status by the party's disposal act' in the execution of monetary claims, in the event that upon application of a lessee's obligee prior to assignment of a leased housing, lease deposit claims are seized or provisionally seized, the status of the parties: execution obligee, execution obligor and garnishee in the execution law remains unchanged, despite change of rights in a substantial law based on Para. 3 of Article 3 of the Housing Lease Protection Act. However, Para. 1 of Article 3 of the Housing Lease Protection Act was legalized to the purport of protecting a lessee by accepting the counterforce of a lease right upon completion of resident registration and delivery without a lease right registered, and to accomplish such purpose of legislation, Para. 3 of Article 3 of the Housing Lease Protection Act stipulates that the assignee of a leased housing succeeds to the status of the lessor. Further, it is regarded that succession of such lessor's status is the general succession of the lessor status as the obligatorily applicable succession in law; the lease deposit claims which the lessor shoulders based on such succession are also assigned to a new assignee; and the assignor completely withdraws from the former lease relations. This shall be regarded same not only as in the substantial law, but also as in the execution law. It is not proper to regard that for the reason of provisional seizure for lease deposit claims attached to a lessor status, the status of a lessor is divided based on both the substantial law and execution law, since this is contrary to the legislation purpose of protecting a lessee through the general succession of a lessor status, namely, obligatorily applicable succession in law under the Housing Lease Protection Act.