저당권부채권질권

Abstract

In 1958, when the Korean Civil Law was enacted, the right of pledge for mortgage claim was stipulated in the Article 348 of the Korean Civil Law, the clause did not applied in the actual transaction because it was not stipulated on the Real Property Registration Act. In 1983, the revision of the Real Property Registration Act allowed the registration of property by stipulating the right of pledge for mortgage claim, and since then the right was widely used as gap investment thrived as the real estate market flourished. However, since the research on the right of pledge for mortgage claim is rarely dealt with in research papers as well as in textbooks, this research is undertook to put the subject in order as following. The right of pledge for mortgage claim should have both contract for the establishment and disclosure method. In order for the pledger or in this case, the mortgagor, to stand against a third debtor or a third party, should have a notice or approval of the designation of the right of pledge for the third debtor, and as for the third party by a certificate with the fixed date. In the case when a pledgee applies for an auction, the mortgage may be carried out through the realization of the direct claim security without being subject to a seizure or an order for collection. When the mortgage claim is pledged and became additionally registered, the mortgagee shall not apply for an auction to execute mortgage on the property because the mortgagee is not allowed to do any harm to the interests of the pledgee(Article 352 of the Civil Act). In the case that a creditor other than the mortgagee has applied for an auction on the mortgage property and a table of distribution is drawn the mortgagee as having a dividend, the pledgee should be ordered to seize and collect the dividend.