나대지에 저당권을 설정한 후 저당목적물의 담보가치를 확보하기 위한 지상권의 효력- 담보지상권의 유효여부와 토지저당권자의 보호방안을 중심으로 -

Generally creditor wanted to secure the easement that are not paid rent in addition to the provisional registration that is established for the claim of registration of transfer of title or the mortgage that is set on the vacant lot for the collateral of the loan. This is so called "collateral-easement", "coexistent-easement", or "contractual-easement for the security." The main reason of establishment of collateral-easement is to prevent from constructing the building on the vacant lot and to stem from decreasing the collateral value. The characteristic of the collateral-easement is not only non-possess the land but also not using the land by the easement holder. However, the easement which is provided on the article 279 of the Korean Civil Code, on the contrary, the easement holder have the right of using the subject land (i.e., res) as well as possession of the lot is the essence of the regulations. Therefore, some special easement that are not expect by the Civil Code was appeared and which is the right of collateral-easement that has not using the land and it is against the principle of the right of realty (i.e., jus in re) only created by the statute and thus questions concerning the establishment and effect of the easement are valid automatically arises. This is the key factor of the interpretation of the issue is whether collateral-easement is valid as a question how harmonize the protection of interest between the mortgagee and mortgagor. So this piece argued the question whether collateral-easement is new right of realty that are not expect by the Civil Code through the court decision and the dispute of academic theory. In addition, this article present the solution regarding the way of protection of land-mortgagee upon the current statute and court holding even she did not acquire the collateral-easement.