전세권 저당권의 등기의 효력과 그 실행방법 -대법원 2008.3.13. 선고 2006다29372,29389 판결의 평석-

In the case of the right of lease which is established with mortgage is registered with right to lease on a deposit basis, the Supreme Court insist that the validity of right to lease on a deposit basis mortgage with no clear explanation whether it is valid or not, if person with a right to lease on a deposit basis is good faith, the right to lease on a deposit basis is valid that the delay rent is not able to be deducted with false expression theory. When it comes to malice, the right to lease on a deposit basis mortgage is able to be deducted However, according to the false expression theory, when it comes to malice, this is invalid that if the right to lease on a deposit basis mortgagee is malice, it is regarded invalid. This paper supports the valid position of Supreme Court that the right to lease on a deposit basis mortgagee is malice, even if it is different with the parties. Even if support the Supreme Court’s opinion, it is hard to support to exclude all deduction of delay rent. Instead, it is regareded a person who set the right to lease on a deposit basis can insist deduction to the right to lease on a deposit basis mortgagor about the delay rent which has occurred at least before a person who set the right to lease on a deposit basis inform a fact of setting mortgage because the effect of false expression not substitute a truth rental contract for a lease on a deposit basis contract. About a execution method for the right to lease on a deposit basis mortgagee when the right to lease on a deposit basis has expired, the Supreme Court regarding the method should be execution of a bond method applying the rules of dingliche Subrogation. However, the right to lease on a deposit basis mortgagor can directly claim the deposit money to a person who set the right to lease on a deposit basis after inform the truth of setting mortgage to a person who set the right to lease on a deposit basis applying the rule of unique pledge of a claim about the bond as a security right based on the Civil Law Act because even if the right to lease on a deposit basis has expired, only the rights of usufruct has expired but real rights granted by way of security still lasted.