수급인의 저당권설정등기청구권에 관한 문제점과 개선방안

Under the Civil Code Section 666, the building contractors are guaranteed to ask for the creation of mortgage on the completed building to the building clients to get the payment of the work after they complete the work. The contractors may work on various types of buildings including apartments, villas, and houses. As a consequence, payments of work take a variety in terms of amounts and conditions. In ordinary building constructions, the building clients conduct the task of building permission, business programs, financing, building inspection, registration of initial ownership of real estate and etc. The contractors conduct the task of building construction buildings after signing the contracts with the building clients and then get the payment of work from them. Since the building construction process not only takes a considerably long time but also costs hugh amount of money, the contractors may face a risk of disaster if they cannot get the payment of work. To protect the contractor from this kind of risk, a legal system that secures the payment of work is in need. One of the legal systems is our Civil Code Section 666 which describes the rights of the contractors to claim the mortgage creation. However, the building contractors usually face many difficulties in exercising these rights. They can exercise their rights only in a limited way since it may bring conflicts with other provisions including the fraudulent act, the lien holder, the action of building client to transfer the ownership to the third person after registration of initial ownership of constructed building and competition on rights with other creditors. To help the contractors exercise their rights for the payment of work in a better way, our Civil Code Section 666 needs to be revised. As an alternative way to protect the rights of the contractors, this study suggests an enactment of provision of the fixed mortgage as described in Swiss law system which allows the building contractors to independently ask the court to set the fixed mortgage within 3 months after completion of the building work. The registration system on the under-construction buildings allowing mortgage creation on them should be adopted. This way, the building contractors are guaranteed to get the payment of work by selling the under-construction buildings even when the building clients get bankrupt in the process of construction.