저당권의 교환가치의 보호를 위한 담보지상권의 유효성 여부

Abstract

Even where mortgage superficies is established, it frequently happens that the mortgager or collateral superficies implementor uses, collects profits and occupies the land, which is the object of superficies. While precedents acknowledge the claim filed by the mortgage holder for removal of disturbance collateral superficies for the purpose of securing mortgage values, it is held that the mortgage holder should not demand compensation by reason of infringement on profits from use. However, it is questionable if the superficies that acknowledges removal of disturbance of mortgage right for the land alone could be a form unintended by legislators of the civil law. Besides, in case infringement on a mortgage right is acknowledged, the mortgagee is authorized to sue for removal of disturbance by exercising the right of removal of disturbance based on the mortgage right, and in case the mortgagee has constructed a building after establishing a mortgage right with the land as an object, the mortgagee is authorized to sue for auction with regard to the building along with the land. In spite of the provision for the acquisition of exchangeable value of mortgage right has already been incorporated into the civil law, it is questionable whether it is just to acknowledge mortgage superficies of such a form. As reviewed in this paper, mortgage superficies does not accord with superficies under the civil law that permits as essential the use of other's land in order to own buildings, other structures or trees on other's land for the reasons that follow. Collateral superficies differs from basic legal characteristics of superficies, which is a usufructuary real right, since the collateral superficies right lapses as it becomes extinct by regarding it as subordinate to mortgage right. Collateral superficies could run counter to the principle of real right by law in that the suferficies designed as the collateral real right acts as a usufractuary real right. Moreover, it is understood that there is no real benefits accruing from, and no need for, acknowledging removal of disturbance by establishing collateral superficies based thereon. It is because, while the owner of the land where collateral superficies was established is significantly restricted concerning the land usufructuary right, the mortgagee, who is the creditor, is overly protected, and in case of infringement on the object of mortgage, it is possible to protect the benefits of the mortgagee.