무효인 보증금·차임 전환약정과 증액된 차임의 연체를 이유로 한 임대차계약 해지

In an en banc decision on November 18. 2015 (2013Da42236), the Korean Supreme Court addressed an interesting issue of the conversion of invalid judicial act into another valid one and the influence of the conversion on the requirements of termination of lease. The lessor in the case was subsidized by the government so that the lease was regulated by law : The amount of the deposit and the monthly rent were capped; The lessor could increase the amount of the deposit to the level over the cap instead of decreasing the amount of the monthly rent, but should observe deposit-rent substitution rate. In the case before the court, the parties agreed on the substitution but it was invalid. The majority opinion of the court ruled that the deposit exceeding the cap shall be restituted to the lessee because it constituted an unjust enrichment for partial invalidness and in that case the rent should be raised up to the cap by the rule of conversion of invalid judicial act (article 138 of Korean Civil Code). Furthermore, the majority opinion said that the lease could be terminated for non-payment of increased rent when the lessee did not pay the increased rent for more than three months even after he was ordered to pay the increased rent by the final decision of court. The conclusion of this decision, especially in the specific case before the court, is agreeable. The reasoning thereof, however, is not. The conversion of invalid judicial act into a valid one cannot be performed in this case because the legal ground of invalidness in this case does not allow to consider the hypothetical intent of the parties. Moreover, the majority opinion did not provide the legal ground and the requirements of termination of the lease when the rent was raised by the law. In this article, the reasoning of the court would be analyzed and criticized, and an alternative explanation for these issues would be presented.