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The Status of a Lease Creditor Who Applied for Compulsory Auction

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2018, 6(2), pp.137-157
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law

Jung Soo Kyoung 1

1부산경상대학교

Candidate

ABSTRACT

The real estate control policy of the new government has caused the real estate price decline and the phenomenon of inverse lease on a deposit basis. In this situation, the difficulty of deposit withdrawals brings about more serious problems if real estate is put up at auction. If a lessee who has opposing power in the Housing Lease Protection Act makes a leasehold setting registration to secure his or her right, it is necessary to review whether the right guarantee of the leaseholder is reinforced in the auction process. If the leaseholder on the fixed date and the creditor of lease are the same person and the same channel in practice and the person claims share on either one, the share is executed on the basis of higher order of priority because the claimed share is considered as the one for both rights. In addition, if the creditor of lease is a leaseholder who has opposing power, and the person couldn't receive the whole amount of security deposit with the priority right, the balance that the person couldn't receive is transferred to a purchaser based on the effectiveness of opposing power of the creditor of lease. However, if the creditor of lease applied for compulsory auction by schuldtitel of the deposit return, it should be viewed separately from request for distribution on the leasehold right. If there is balance of deposit that is not assigned at auction, the leasehold right shouldn't be extinguished. The compulsory auction by a creditor of lease should be considered as the one that implies another intention until the application. Eventually, even if a creditor of lease has both leasehold right and opposing power, the regulations applied to each are different, so the two rights should be separately applied. However, in order to compensate this, it is necessary to clarify the relation of right between the registration of an alteration of leasehold right and the statement of sold item of the court. In case a creditor of lease on the highest priority can't receive the whole lease deposit, the creditor should be protected by a method to protect through registration of an alteration and a method that the details are written on the statement of sold item of the court, so that the purchaser shouldn't be confused.

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