동산 양도담보계약에서 채권자에 의한 채무자의 소유권 침해 가능성과 절도죄의 성부

Abstract

This precedent recognized the mortgage disposition right of creditor regardless of the termination of adjustment procedure according to the Supreme Court Decision, 1994.8.26, 94Da44793. However, the right of creditor should be understood negative thing to protect the mortgage right rather than translated positive right to dispose this mortgage before termination of adjustment procedure on the meaning of this judgement. In my opinion, this understanding is rational and in accordance with the meaning of Supreme Court Decision, 1994.8.26, 94Da44793. And the external possession right of creditor is also understood negative right by the theory of ownership transfer though entrust, because of the disposition impossibility to ignorant buyer owing to debtor's possession of movable property, mortgage. Finally according to the law on provisional registration mortgage, the internal possession right of the debtor to mortgage is available to the creditor before the termination of adjustment procedure at least.