피담보채권에 대한 비판적 검토

Abstract

In this paper, I have reviewed several issues on claim secured of real right for security, and proposed solutions and amendments. And then Hereinafter, this real right for security is called security-right. And Civil Code means Korean Civil Code. ① What is claim secured? The theory is divided about this problem. The minority theory is that claim secured means principal claim. But the majority theory says that claim secured has two meanings. In this paper, I have reviewed this minority theory and majority theory critically. And then I advocated that the meaning or scope of claim secured is determined by the Act that stipulates on the claim secured. Therefore, each claim secured may have a different meaning. In addition, there is a view that divides meaning of claim secured into the first meaning and the second meaning. I think this view is unreasonable too. ② Does security-right secure claim or debt? Civil Code stipulates that security-right secures claim in the pledge(Article 329), but debt or claim in mortgage and floating sum mortgage(Article 356․357․361․364 etc.). The theory says debt or claim without any grounds. After examining the legislative cases in detail, I advocated that security-right secure claim because that security-right is accompanied with claim. And it is right amend debt to claim in Civil Code Article 356․357. ③ After examining the legislative cases concerning Civil Code Article 334 in detail, I studied on Civil Code Article 334 in depth. And I put forward an reasonable amendment of Civil Code Article 334. ④ After examining the legislative cases concerning Civil Code Article 360 in detail, I studied on Civil Code Article 360 in depth. And I put forward an reasonable amendment of Civil Code Article 360. ⑤ Civil Code Article 360 Clause 1 and Clause 2 show “debt” several times. This debt means claim. I examined what kind of clain is this claim. And I examined problems in Civil Code Amendment Article 360-2 that our Government submitted the Assembly in 2004. And examining the claim secured in Chonsegwon, I advocated that it is right to apply Civil Code Article 334 to the scope of claim secured in Chonsegwon. And I examined simply the claims (secured) in Provisional Registration Security Act, Registration of Real Estate Act, and anther Act.