신탁부동산에 대한 임차권의 대항력

신탁부동산 임차권의 대항력과 법적 범위를 검토했다.

As a trust for real estate increases, the disputes over lease on trust real estate expand. When the lessee has met the requirements prescribed in article 3(1) of the Housing Lease Protection Act or the Commercial Building Lease Protection Act, he/she can assert the leasehold against third parties. But the effect of the leasehold or the range of opposability is not clear enough to regulate the relationship between the parties and to solve the disputes. This paper examines these issues through the Supreme Court decisions and literature concerned.

When the lessor settles a trust and transfers the house, the lessee who has been provided with the house and completed resident registration can assert the leasehold against the trustee. The trustee succeeds the status of lessor as transferee. Even If the terms of trust provided otherwise and were registered as a trust registration under the Real Estate Registration Act, they do not have binding effect to the lessee. When the lessee contracts with a trustee or a settlor as his/her agent, the lessor is the trustee. However, if the settlor with an authority to lease contracts, the lessee can assert the leasehold against the trustee.

That means the lessee can occupy and use the house according to the contract, but he/she cannot claim the restoration of deposit against the trustee. Because the lessor is settlor, the contract party and the trustee is not a transferee. In addition, the lessee cannot claim the restoration of deposit against a transferee, when the trustee transfers the house. Therefore, judicial precedents so far which have been based on the opposability of trust registration and assertions which do not distinguish the case in which the lessor is not an owner should be reappraised.