전세권과 허위표시 - 대법원 2010. 3. 25. 선고 2009다35743 판결 -

At the Supreme Court case(2009da35743), lease contract with monthlyrent and deposit money was made for the building. And ‘Chonsegwon'was registrated. In Korean civil law, Chonsegwon is the property right anddesigned on the deposit money with no periodical rent. So in this case,parties made ‘Chonsegwon contract'(contract that aims to create‘Chonsegwon' as property right) that included only the deposit money. That contract is sham transaction, because actually parties did concludelease contract with 'monthly rent'. After some time, parties made new lease contract without depositmoney, so the previous deposit money was returned to the lessee and thelessee continued to occupy the building as before. Because the depositmoney had been returned, ‘Chonsegwon' as the security right for thatmoney did not exist more. However ‘Chonsegwon' registration was notremoved by the parties. The Supreme Court case says, the person - who provisionally seizedthe claim for the deposit money that was recorded in ‘Chonsegwon'registration but no longer in existence - is the third party at shamtransaction(‘Chonsegwon contract'), so he can acquire that claim thoughthat claim does not actually exist. I think this conclusion is right, but court's reasoning needs to beexplained and supplemented. In this case the concerned sham transactionis not only about the monthly rent, but also the deposit money. Depositmoney in ‘Chonsegwon contract' was larger than actual deposit money in lease contract. So the third party's reliance about deposit money can beprotected on the basis of the concerned sham transaction. But if theconcerned sham transaction is only about the existence of the monthlyrent, such reasoning can not be applied. Then the existence of falseregistration itself after the return of deposit money should be the mainstandard for the protection of the third party's reliance about depositmoney. And I think such person can be protected by analogical applicationof Article 108 (2) of the Korean Civil Code, when the owner(lessor)neglected to remove the false registration for some time although he knewthe registration is not true. In this article, I also deal with the matter about set-off or deductiondefense against seizure's or ‘Chonsegwon' mortgagee's claiming return fordeposit money.