전세권과 주택임대차의 대항력과 우선변제권 비교 (대법원 2007. 6. 28. 선고 2004다69741 판결)

Abstract

The object judgement, even if the lessee registers the right of the Junse of a house, can't recognize the opposing power and the right of the preference of repayment of the Housing Lease Protection Act, if a lessee loses the occupation of the house without the resident registration and a fixed date about the contact of the lease. The reasons are because the Real Property Registration Act asks a public announcement by registering the date of the resident registration, the beginning date of the occupation and the fixed date, as a matters being required to be registered by the court's registration order of the lease and because the matters of the registration of the right of Junse are the guaranty money of Junse and the continued existence period of the right of Junse, both are different in an essential condition and effectiveness. But I think the attitude of the object judgement is not right. Because the right of Junse is a right about the article, it has the preference than the right of the housing lease has in the opposing power, and the registration of the period of the continued existence of the right of Junse can do the function of the public announcement by alternating the beginning date of the occupation and the date of the resident registration about the house. And because the Housing Lease Protection Act recognizes the opposing power even if the lessee loses the occupation of the house after registration of the right of the lease about the house. So I think that the object judgement is not right and should be changed.