부동산임대차에 있어서 임차권양도 금지특약에 반한 임차보증금반환채권 양도의 효력에 대한 대법원판결 비판

The Korean Supreme Court’s (KSC) rulings have been a constant source of controversy regarding whether a transfer violates an agreement if a tenant transfers the rental deposit return claim to another, even though a landlord has agreed with the tenant to prohibit the transfer of the tenancy rights in real estate leases. The KSC has ruled (1) that the rental deposit return claim is not subject to the above-mentioned prohibition, and (2) that the person to whom the rental deposit return claim was transferred, regardless of the landlord's consent, can assert the transferred right against the landlord. However, this insight of the KSC is not so easily persuaded because it does not contain the arguments at all. In this paper, I have critically examined the KSC's insight and proposed a solution based on the differences in the types of rented properties and the associated tenant protections. The outcomes of the above-mentioned problem will therefore depend on the nature of the rented properties. For small commercial premises subject to the Tenant Protection Act, the restriction on the transfer of tenancy rights pursuant to Section 629 of the Korean Civil Code must be relaxed. This means that exceptional circumstances that cannot be considered treason against the landlord must be recognized relatively broadly in small commercial leases. Even if the persons who signed the lease have entered into an agreement prohibiting the transfer of tenancy rights, this should not automatically be considered a prohibition on the transfer of the rental deposit return claim. On the other hand, in residential leases, the stability of the apartment during the rental period or the guarantee of the tenant's right of residence are important, so the personal relationship of trust between landlord and tenant plays a key role. Therefore, in residential leases, it can be assumed that such a prohibition also prohibits the transfer of the rental deposit return claim. If the leased property is land or forest, man cannot generally assume that the tenant is in a particularly disadvantageous position compared to the landlord. In such cases, the limitation on the transfer of tenancy rights should be kept to a minimum, and the validity of the transfer of the rental deposit return claim must be recognized against the aforementioned agreement. On the other hand, it is also possible to conclude that, in the case of land or forest leases, the relationship of trust between landlord and tenant is important because the lease term for these properties is generally long. In such cases, the aforementioned agreement should be considered valid, even if the tenant transfers the rental deposit return claim. Which direction to take appears to be a matter for legislative decision. The same applies to land leases that aim at ownership of a building.