임대차에서의 연체차임의 공제

초록

The deposit paid on real estate lease guarantees the compensation for the overdue rent and other debts. The overdue rent is deducted from the deposit at the time of return of the object after the termination of the lease without the lessor’s declaration of intent of deduction. If there is an attachment and collection order, the claim for rent which is the subject of the order is scheduled to be covered by the deposit, and the collection creditor is also subject to such restrictions. Therefore the overdue rent is deducted from the deposit at the time of return of the object after the termination of the lease. In addition, even if the claim for rent is transferred, the overdue rent is deducted from the deposit at the time of return of the object after the termination of the lease. It’s rationale is as follows. The overdue rent is subjected to be deducted from the deposit if it is remained until the return of the object after the termination of the lease from the legal nature of the deposit and the rent, and such a legal character is not changed when the claim for rent is transferred. Therefore it is not unreasonable that the transferee of the claim for rent bears the risk of the deduction of the overdue rent from the deposit. It is not disadvantageous for the tenant to receive the deposit after deduction of the overdue rent, and it meets the tenant's intention. When the lessor's status is succeeded to the assignee due to the transfer of the object, the overdue rent which occurred before the transfer of the object is not succeeded to the assignee unless they agree on it. In the absence of an agreement on the overdue rent, the assignee succeed the obligation to pay the full amount of the deposit, not the remaining deposit after the overdue rent has been deducted. And the assignee shall pay the remaining deposit after deduction of the overdue rent at the time of return of the object after the lease termination. The reason is as follows. It is consistent with the legal nature of deposit and the legal effect of succession of lessor’s status that the assignee takes the obligation of deposit repayment and the possibility of deduction of overdue rent at the time of return of the object after the lease termination, and the assignor is exempted from the obligation of deposit repayment. It meets the general intentions of the transferee and the tenant, and is also properly takes into account the interests of the lessor and the collection creditor.

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