소액보증금의 최우선변제권 요건을 갖춘 임차인에 대한 실질적 보호가치의 판단을 배당에 반영하는 방법

It has been increasing the number of the lessee who abuses the legislative purpose to secure the right of the poor lessee to receive repayment of the specified amount of the deposit in preference to the other persons. The Korean Supreme Court decision on Dec. 12. 2013 (2013da62223) deals with the issue above. This decision declared that the lessee of the housing lease contract who focused on economic profits rather than real residence was not allowed to receive the first prior repayment. This decision shows the determination that the lessee unsatisfying the legislative purpose of the first priority of repayment should be excluded from the first priority in distribution. This decision can be valued in that it limited the range of the lessee who could afford to obtain the priority in distribution clearer and broader than before by reconsiderating the legislative purpose of 'Housing Lease Protection Act'. But, there still remains the lessees that can hardly be noticed whether they are in the range of protection or not. Especially when the collateral security has been set on the house and the amount of the secured claim exceeds the market price of the house, the lessee with the priority prevent the collateral security holder from receiving the distribution to the fullest of the value of the liable property held by the security. Therefore, it is important whether the collateral security holder could revoke the lease contract as a fraudulent act. The Korean Supreme Court decision on Apr. 13. 2006 (2005da70090) decided that the relatively fraudulent act cannot be established only for the creditor with the priority to the collateral security holder when the liable property was disposed to the third party on which the collateral security had been set and the amount of the secured claim exceeded the price of the disposed property. But It is unreasonable to let the rationale apply to the conclusion in general that the collateral security holder can not revoke the lease contract which is made after the collateral security has been set. It should be rather possible that the collateral security holder does revoke the lease contract, because the security has secured the liable property in preference to the other creditors in contrast to general creditors, and the appearance of the lessee who has the first priority makes the liable property for the collateral security holder reduced. This reasoning is not inconsistant with the fact that the obligee's revocation has an effect on all creditors.