전세권을 둘러싼 집행관계의 재구성 -남효순 교수의 물권법의 새로운 패러다임에 기초하여-

There is a debate between the view that the right to claim the return of the lease deposit is a real action and the view that it is a conditional claim for the future (the traditional prevailing opinion and case law). However, the Supreme Court ruled that it is not permissible to separate the lease deposit return claim from the lease on a deposit basis and transfer it definitively while maintaining the leasehold right. However, conditional transfers in the future are permitted. Based on this ruling, it is established practice that seizure of lease deposit return claim, which is conditional claims in the future, is possible during the leasehold period. The lease on a deposit basis has two characteristics. that is the right of usage and the security right. By the way there is a practice of applying Article 228 of the Civil Enforcement Act by analogy to register a seizure of the lease deposit return claim before the expiration of the lease term. However, during the lease term, the lease claim must be interpreted differently from the mortgage claim, so this practice cannot be considered reasonable. This practice should be corrected. Furthermore, the term “leasehold debt” is also inappropriate. However, since the security interest becomes effective after the expiration of the term, I believe that Article 228 can be applied by analogy. Furthermore, it matters among the prior assignment order and the subsequent sequestration arises before the expiration of the duration which takes precedence over. However, the interpretation of civil procedure law and the effect of substantive law must be viewed differently, so the prior assignment order is valid and the issue of co-exist does not arise. After the termination of a leasehold interest, the person with a right to lease on a deposit basis may file an application for aution for exercise of security right by submitting a certificate of registration of the leasehold interest, even though there are no specific provisions in the Civil Enforcement Act or the Civil Enforcement Rules regarding the procedures for the auction. In practice, the creditor of the person with a right to lease on a deposit basis may exercise collection rights to apply for auction based on the leasehold, and must obtain a seizure and collection order for this purpose. It goes without saying that seizure of the lease deposit return claim is possible after the leasehold has expired. Case law states that a Chonsegwon mortgage is established on the usage powers of a leasehold. This is based on the doctrine that a Chonsegwon mortgage cannot be established on the security powers of a leasehold. Therefore, case law holds that treating the so-called security powers of the lease on a deposit basis as the object of a mortgage violates the principle of Article 185 of the Civil Code. Thus, it was ruled that after the expiration of the lease term, the Chonsegwon mortgagee could seize the lease deposit return claim by subrogation. However, this does not resolve the theoretical difficulties. However, given the recent emergence of a new paradigm in property law theory, I support this theory in terms of expanding the scope of real rights and strengthening the independence of the property law system. By doing so, we can also reap the practical benefits of easily resolving various cases that have been problematic in the enforcement of leasehold rights in the past.