거짓으로 대항력을 주장하여 임차권등기명령에 따라 등기된 임차권의 충돌과 우열

In order to protect tenants, the world is tending to embody lease rights. In the case of Korea, unlike other countries, the lease deposit is much higher than in other countries, reaching 60-70% of the housing price. Because of this, it is very important to ensure that tenants can safely recover their lease deposits. Therefore, it is necessary to actively reflect the embodying of lease rights. The lease registration order system can be said to have been introduced in line with this trend. Since the implementation of the Housing Lease Protection Act, the lease registration order system has been continuously criticized due to various issues. One of the major concerns is that a tenant who has moved out without receiving the return of their lease deposit may falsely claim on the application form that they are still occupying the property, which is required for applying for a lease registration order. Before the lease registration is completed, a new tenant may take over the property and complete their resident registration, leading to a conflict over lease rights between the previous and the new tenant. This raises the question of whose lease rights should be prioritized. The discussion begins with the issue of whether a lease registration order can be applied when a tenant has already moved out or changed their resident registration without having received the return of their lease deposit—a concern that has been raised with the current system. To address this, we need to interpret Article 3-3, Paragraphs 1 and 5 of the Housing Lease Protection Act. This involves two main points: the legislative intent and purpose of the lease registration order system, and the nature of the requirements for acquiring opposing power. In Section II, "Function of the Lease Registration Order System," we will explore the system's purpose, legislative intent, significance, and effects. In Section III, "Requirements for Acquiring Opposing Power," we will discuss the criteria for obtaining opposing power and the conditions for its existence. In Section IV, "Issues Raised," we will review the specific concerns that have been identified. Finally, in Section V, "Proposed Solutions," it is suggested that a lease registration order should be applied when it is objectively clear that the lease deposit cannot be returned, even if the lease period has not yet ended.