근저당권설정비용의 부담주체에 관한 고찰

In this article, the author examined who should bear the cost of establishing the right to collateral security between without creditor and debtor from a comparative legal perspective. In author’s view, regarding the foregoing issue, Korean Civil Code has more similar structure to French or Japanese Civil Code than to German Civil Code. Accordingly, likewise in French Civil Code, interpreting that the cost of establishing the right to collateral security should borne by the debtor as a kind of expenses of performance, is the interpretation harmonized with various related provisions of Korean Civil Code. Some court precedents taking the position that the creditor should bear the cost, are not contradictory to the author’s view because they are all related to the ‘transfer for security’ and the court has hold the consistent view that transfer for security has the legal structure of sales instead of collateral security. However, notwithstanding the foregoing argument, the issue shall be decided by the principle of private autonomy in the essence, therefore the common practice of transaction which will be formed in the future shall be paid sufficient attention. With the controversy being raised out of the court decision that the former standardized contract provision of bank loan is invalid, the author hopes that the related basic issues of Korean Civil Code such as the relation of article 473 and 565, the interpretation of foregoing provisions, actual common practice of transaction and the comparative legal position, as well as the issue of cost burden, shall be actively discussed.