파산절차에서 면책결정의 효력과 우선변제력 있는 주택임대차보증금반환채권 – 대법원 2025.6.12. 선고 2022다247378 판결 –

초록

Although a residential tenant’s claim for the return of a lease deposit is granted a preferential right in bankruptcy proceedings, the tenant lacks the right to request an auction. Therefore, when the landlord goes bankrupt and receives a discharge decision, it has become an important practical and theoretical issue whether the effect of the discharge extends to the portion of the deposit return claim that holds the preferential right, as well as to the claim for indemnity arising from a guarantor’s subrogation by performance. A recent Supreme Court decision (Supreme Court Decision 2022Da247378, decided June 12, 2025) held that the effect of the discharge decision extends to the entirety of the residential tenant’s deposit return claim, including the portion recognized with the preferential right. Focusing on this ruling, this paper conducts an in-depth examination of the general effect of a discharge decision in bankruptcy proceedings, the treatment of deposit return claims with preferential rights, and the effect of discharge on a guarantor’s indemnity claim. A residential lease deposit return claim is treated similarly to a right of separate satisfaction within bankruptcy proceedings. However, since it is fundamentally a bankruptcy claim, the ruling’s stance that the effect of the discharge decision extends to the entire claim—including the portion recognized with a preferential right—is valid under the legal principles of the Debtor Rehabilitation and Bankruptcy Act. Furthermore, the indemnity claim acquired by a guarantor through full subrogation of the principal debt is also a realization of a property claim arising from a cause prior to the adjudication of bankruptcy; thus, the effect of the discharge decision should apply even if the guarantor was omitted from the list of creditors. However, under the legal logic of this ruling, in situations where the leased housing is not liquidated from the bankruptcy estate or an auction is not conducted, a problem arises wherein the existing tenant practically cannot recover the deposit unless a new tenant appears. To resolve this gap in the protection of rights, it is necessary to establish explicit legislative provisions that either define the deposit return claim within the scope of the preferential right as a non-dischargeable claim or allow the tenant to directly apply for a compulsory auction using the table of bankruptcy creditors as an executive title.

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