법무부 법무심의관실에서는 주택임대차 계약증서상의 확정일자 부여에 관한 규칙 등과 관련하여, '2012. 12. 확정일자 업무편람' 을 발간하여 그 내용을 게시하오니 업무에 참고하시기 바랍니다.
1. 주택임대차 계약증서 확정일자 부여 업무 해설
2. 주택임대차보호법 Q&A
3. 주택임대차 관련 법령
4. 주택임대차보호법 관련 판례
편집-확정일자 업무편람.pdf
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<<Ⅰ>> 주택임대차계약증서 확정일자 부여 업무 해설
1. 확정일자 개요 ···························································································3
2. 주택임대차계약증서상 확정일자의 법적 효과 ·········································4
3. 읍ㆍ면ㆍ동ㆍ출장소장의 확정일자 부여 업무 개요 ································4
4. 임대차계약증서 확정일자 부여 절차 ·······················································6
5. 수수료 징수 ····························································································11
6. 확정일자부의 열람ㆍ제공 ·······································································11
<<Ⅱ>> 주택임대차보호법 Q & A
1. 주택임대차보호법의 적용범위 ································································15
2. 임차인의 대항력 ·····················································································18
3. 임차인의 우선변제권 ··············································································24
4. 임대차기간 및 계약의 갱신 ···································································27
5. 소액임차인의 보호 ·················································································31
6. 임차권등기명령제도 ················································································37
<<Ⅲ>> 주택임대차 관련 법령
주택임대차계약증서상의 확정일자 부여에 관한 규칙 ································41
주택임대차보호법 ·························································································45
주택임대차보호법 시행령 ············································································52
민 법 ··········································································································56
임차권등기명령 절차에 관한 규칙 ······························································63
<<Ⅳ>> 주택임대차보호법 관련 판례
1. 주택임대차보호법의 적용범위 ································································69
∙ 법인이 임차인으로서 주택임대차보호법상 보호받을 수 있는지 여부 ··············69
∙ 주택임대차보호법의 적용을 받는 ‘주거용 건물’의 판단 기준 ···························70
∙ 임차주택의 지번 등이 잘못 기재되어 주민등록된 경우
대항력을 취득하는지 여부 ····················································································71
∙ 주민등록이 직권말소된 경우 대항력이 상실되는지 여부 ···································73
2. 임차인의 대항력 ·····················································································75
∙ 대항력이 발생하는 ‘다음 날’의 의미 ···································································75
∙ 주택의 양도담보권자가 제3조 제3항의 양수인에 해당하는지 여부 ·················76
∙ 신탁법상의 수탁자가 제3조 제3항의 양수인에 해당하는지 여부 ·····················77
∙ 대항력 취득 후 다가구용 단독주택이 다세대주택으로 변경된 경우
대항력을 상실하는지 여부 ····················································································79
∙ 임차인 가족의 주민등록은 그대로 두고 임차인의 주민등록을
다른 곳으로 옮긴 경우 대항력을 상실하는지 여부 ···········································80
∙ 주민등록 주소와 등기부 주소가 다른 경우 대항력을 취득하는지 여부 ···········81
∙ 명의신탁자와 임대차계약을 체결한 경우 대항력을 취득하는지 여부 ··············82
∙ 대항력과 우선변제권의 상호관계 ·········································································83
∙ 임차인이 전세권등기를 한 경우 대항요건이 불필요한지 여부 ·························84
3. 임차인의 우선변제권 ··············································································86
∙ 임대차계약서를 분실한 경우 우선변제권의 소멸 여부 ······································86
∙ 확정일자인만 있고 월일자의 기재가 누락된 경우의 효력 ·································87
∙ 공무소에서 기입한 일자가 사실상의 일자와 다른 경우
확정일자 있는 문서로 볼 수 있는지 여부 ··························································88
∙ 대항요건과 같은 날 또는 먼저 확정일자를 받은 경우
우선변제권의 발생 시기 ·······················································································89
∙ 임대차계약서에 확정일자를 받았으나 아파트 명칭과 동ㆍ호수를
누락한 경우 우선변제를 받을 수 있는지 여부 ···················································90
∙ 임차인과 다른 권리자와의 순위 결정 기준 ························································91
∙ 보증금반환채권만을 양수한 양수인이 임차인으로서 우선변제권을
행사할 수 있는지 여부 ·························································································92
4. 임대차기간 및 계약의 갱신 ···································································93
∙ 임대차가 묵시적 갱신된 경우 임대차기간 ··························································93
∙ 재계약이나 합의로 차임을 증액한 경우에도 증액한도율이 적용되는지 여부 ···· 94
5. 소액임차인의 보호 ·················································································96
∙ 임대차보증금이 감액된 경우 소액임차인 보호를 받을 수 있는지 여부 ···········96
∙ 소액임차권 설정행위가 사해행위 취소의 대상이 되는지 여부 ·························97
【참고사항】 주택임대차 관련 기관ㆍ단체 연락처 ·······································99