전세권저당권의 실행방안 -대법원 2006. 2. 9. 선고 2005다59864 판결-

Abstract

Chonsekwon Mortgaged was frequently used in a civil case practical affairs. A point at issue of main research is the continued existence of Chonsekwon Mortgaged, when the expiration of a term of Chonsekwon. Generally speaking, The object of Chonsekwon Mortgaged is entitled to obtain satisfaction of his claim in preference to other creditor. What's more, creditor of Chonsekwon Mortgaged confide to obtain satisfaction of preference. So then, Many of scholars should be asking the judical precedent that is the extinguishment of mortgage after the expiration of the period of Chonsekwon. To resolve these issues, we must be study the some thema. Firstly, we need to study the legal nature of Chonsekwon. Scholars are insists on the some theory which are theory of usufructuary right and theory of security right and theory of mixed right. I maintains that theory of security right, because creditor of Chonsekwon may sell the thing by official auction to obtain satisfaction of his claim and reasons for the origin and development of Chonsekwon and demand of Chonsekwon money, etc. Secondly, we need to study the continued existence of Chonsekwon Mortgaged, when the expiration of a term of Chonsekwon. Scholars are insists on the some theory which are theory of extinguishment of Chonsekwon Mortgaged and theory of continued existence of Chonsekwon Mortgaged. Judical Precedent adopted the theory of extinguishment in the the continued existence of Chonsekwon Mortgaged, when the expiration of a term of Chonsekwon, only creditors of Chonsekwon Mortgaged are able to surrogation right by attachment and collection order or conversion order. It is method of civil execution proceedings for the allotment. I could not comprehend judical precedent surrogation right to recognize. Because surrogation rights was recognized by the real rights granted by way of security. Thirdly, we need to study execution method of Chonsekwon Mortgaged. Scholars are insists on two theory which execution method through surrogation right by attachment and collection order or conversion order and execution method through Pledge of Right. I could not comprehend judical precedent the former theory to adopted. I allow that execution method through Pledge of Right. The reasons are that limit of civil execution proceedings for the allotment and the same quality nature of Pledge of Right and Chonsekwon Mortgaged.