보험금청구권에 대한 저당권의 물상대위

Abstract

Mortgage is an exclusive right to have preferential reimbursement right, rather than not material use, which is only about exchange value which belongs to objective. As detailed phenomenon comes from right of exchange value of mortgage, subrogation has been a public issue. A pledge may also be exercised against money or other things which the pledger is entitled to receive by reason of the loss, damage or expropriation of the pledged article. In such case, an attachment must be levied thereon prior to their payment or delivery(§342, §370). this is subrogation of security right. The real right, granted by way of security, is the right of exchange value in order to understand exchange value of objective. So, if material form of objective is changed,real right granted by way of security can have validity on value transformation. In my opinion, attitude of widely accepted theory and judicial precedent has a problem which is that they just think it as an object of Subrogation, not discussing substance of insurance claims, although insurance claims among the value transformation is cost to pay a tax. Therefore, in this research, we discuss whether we should admit subrogation about insurance claims. In conclusion, if we admit subrogation according to “substance of real right granted by way of security”, we deny insurance claims, unlike damages and compensation. This is because insurance claims are not that value of objective is changed. It is not correct theoretically that insurance claims which are cost to pay insurance preferably, aren't changed value is to be an object of Subrogation. Of course, if we deny subrogation about insurance claims, protection of mortgage leaves will be highly demanded. I think this problem can be solved by creating pledge on insurance claims and transference of insurance claims, not by under Civil code Article 342, 370. From aspect of legislation, I think we need to consider making individual and detailed regulation of subrogation about insurance claims, such as BGB, in order to protect a mortgagee.