주택임차인의 대항력 및 우선변제권 상실 후의 효력에 대한 연구 - 경락인의 임차인에 대한 지위

Housing Lease Protection Act, to protect the residential right and the right of claim to lease security deposit, grants an opposing power and a preferential payment right to tenants. A tenant gains an absolute opposing power when there is no prior creditor or a relative opposing power when there are prior creditors. Tenants in both case can equally exercise the opposing power against a succeeding lessor of the rental house in case of succeeding the right by other means than an auction. In other words, when a succeeding lessor seeks to vacate the rental house, tenants can refuse to vacate the house by exercising the opposing power, whether absolute or relative, until the lease security deposit is returned. In case of an auction, however, a tenant with a relative opposing power cannot refuse the succeeding lessor’s request to vacate the house. However, in a case where a tenant who has an absolute opposing power could have gotten a fixed date but didn’t in their own negligence, and when a third party interrupts and gains a security real right in the rental house, the tenant cannot argue preferential payment right to the third party with the security real right. Even in this situation, the Supreme Court has ruled that based on the absolute opposing power, the tenant can exercise an opposing power against the succeeding lessor. Therefore, the succeeding lessor cannot seek to vacate the rental house unless the lessor repay the lease security deposit. Thus, in this case, it is unreasonable to burden the successful bidder of the auction, who becomes the succeeding lessor, with the dividend that the third party with security real right has taken. I think that it is fair for the tenant to seek the sum of the dividend from the ex-lessor not the succeeding lessor. In this study, I define the opposing power that cannot be argued against the successful bidder as a limited opposing power.