전세기간 만료 후 전세권저당권자의 법적 지위 - 전세권저당권의 객체와 전세권저당권자의 우선변제권 인정여부 -

Abstract

In order to protect the economically disadvantaged, the Civil Act stipulated jeonsegwon(right to lease on a deposit basis) as a beneficiary right from the time it was enacted. The jeonsegwon mortgage was established on the premise of the jeonsegwon, which is a usufructuary right. However, due to the revision of the Civil Code in 1984, the nature of a security rights was added to the jeonsegwon , which made the law more complicated. In addition, the Supreme Court cannot execute the mortgage on the jeonsegwon due to the extinction of the jeonseperiod. The mortgage holder only recognizes the exercise of the right to Repayment of security deposit. Although the interests of the mortgage holder must be fully protected in order for the mortgage on the jeonsegwon to be used in practice, the judicial precedent prioritizes the protection of the jeonsegwon settlor. As a result, the jeonsegwon mortgage is not frequently used in practice, so it is necessary to form a legal theory that can protect the interests of the jeonsegwon mortgage holder as well as the protection of the jeonsegwon mortgage settlor. The contents are as follows. The object of the jeonsegwon mortgage is the jeonsegwon(a usufructuary right and a security right). A Repayment of security deposit shall not be an object of a jeonsegwon Mortgage because it is not a requirement for the establishment of a Jeonsegwon. However, when a mortgage is established above the jeonsegwon due to the appendant nature of a repayment of security deposit, the effect of the mortgage also affects the repayment of security deposit. In such cases, it is deemed that a right of pledge has been established on the repayment of security deposit. Before the expiration of the jeonsegwon period, the mortgage holder may execute the mortgage, and in such cases, the successful bidder acquires the repayment of security deposit along with the jeonsegwon due to the appendant nature of a repayment of security deposit. The jeonsegwon mortgage holder receives preferential payment from the auction price. When the jeonsegwon period expires, the usufructuary right of jeonsegwon expires, and the jeonsegwon mortgage will survive on the repayment of security deposit, which is subordinate to jeonsegwon, along with the possessory right and security right of jeonsegwon. In such cases, a mortgage holder may not execute his/her mortgage due to the expiration of his/her usufructuary right, but may exercise his/her repayment of security deposit. In other words, a jeonsengwon mortgage holder with the requirements of Article 349 of the Civil Act, notification of the jesonsegwon establishment by the jeonsegwon settlor or consent of the jeonsegwon authorizer, may directly request the jeonsegwon settlor to return the repayment of security deposit(Article 353). However, a jeonsegwon mortgage holder who fails to meet the requirements of Article 349 of the Civil Act may obtain satisfaction of his/her own bonds by exercising the creditor's proxy rights on the repayment of security deposit as a general creditor.