전세권의 용익물권성과 담보물권성 분리에 따른 입법론적 고찰

Abstract

It has been the commonly accepted view that a right to lease has dual natures of a usufructuary right and real rights guaranteed by security. A right to lease needs an obligee of lease and a settler in the aspect of a usufructuary right, and a right to lease needs a creditor and a debtor in the aspect of real rights guaranteed by security. However, the parties concerned are restricted to only two person that a creditor is same as an obligee of lease and a debtor is same as a settler. I think that it is not against the nature of real rights guaranteed by security even if parties concerned are divided to four persons. Because a settler of lease can receive key money from a creditor, and a an obligee of lease can transfer an obligatory right to others or pay key money by borrowing money from others. On the other hand a creditor of lease has a nature of fixed term and conditional claims, it is possible to return the balance, after subtraction of the amount of damages from key money, to a creditor of lease on the condition that an obligee of lease deliver the objective of lease and cancel registration of lease when it arrives the time for repayment of key money. Accordingly, it is necessary to recognize that a right to lease has dual nature of a usufructuary right and real rights guaranteed by security, and then a system of a right to lease should be managed in both aspects of usufructuary right and real rights guaranteed by security. I support the opinion that this argument makes it possible though the amendment of real-estate registration law. If this argument is hard from perspective of interpretation of law, I will suggest the ideas on the amendment of related provisions to a right of lease.