전세금반환청구권의 법적 성질과 전세권설정자에 의한 상계 : 대법원 2014. 10. 27. 선고 2013다91672 판결 - 남효순 교수의 새로운 패러다임에 의한 물권론에 기초하여 -

초록

The decision under review addressed, for the first time, whether a settlor of a Jeonsegwon may assert set-off against its mortgagee when the mortgagee exercises subrogation over the claim for return of the jeonse deposit. The Court held that set-off is, in principle, unavailable because of the mortgagee’s preferential right to payment, while recognizing an exception where a reasonable expectation interest deserves protection. This paper argues that the Court’s reasoning and conclusion are difficult to accept in light of the nature of the Jeonsegwon and the claim for return of the deposit. Under Professor Hyo-Soon NAM’s “new paradigm” in real rights theory, the Jeonsegwon is a real right combining usufructuary and security functions and including a real-right-based claim for return of the deposit. It constitutes a single bundle of proprietary interests over which a mortgage is established. Accordingly, even after expiration of the usufruct period, the mortgagee does not newly become a subrogee or pledgee, but retains the status of mortgagee acquired upon registration. This approach supports allowing the mortgagee to directly claim return of the deposit from the settlor and denying the settlor the right to assert set-off based on a claim against the holder of the Jeonsegwon. After expiration of the usufruct period, the mortgage may be enforced through execution proceedings against the Jeonsegwon or through a direct claim for return of the deposit. Legislatively, an express provision granting such a direct claim, similar to Article 353 of the Civil Act concerning pledgees of claims, would be desirable. Alternatively, Article 353 may be applied by analogy. Where the mortgagee directly claims return of the deposit from the settlor through an analogous application of Article 353, the settlor should not be permitted to assert set-off based on a claim against the holder of the Jeonsegwon. The relevant claims do not satisfy the requirements for set-off, and there is no sufficient basis for an exception. The new paradigm offers an innovative reexamination of traditional doctrines of real rights and real-right-based claims and provides a basis for further research in this field.

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