현행 전세권저당권의 문제와 개선방안에 대한 고찰

Under Civil Code Article 371, the settlement of mortgage on leaseholdrights(“Joensegwon” in Korean) is possible. As a result, a person who hasleasehold rights (namely a leaseholder) has been able to get financingusing it. In other words, the leaseholders pay a deposit by 70~80 percent ofa house price at once and get the right to use the house and take abenefit from it. Besides, the leaseholders get the credit of return of thedeposit with the expiration of a lease, so financial institutions couldaccommodate them with a loan on the basis of the credit. That is, the financial institutions set up a mortgage on the leaseholdrights under the trust that they could claim preferential payment with thecredit of a deposit. However, it seems that the above system of mortgaged leasehold rightsis not used effectively in actual financial transactions. It results from the fact that the right of preferential repayment cannotbe actualized under the precedent in Korea that said the mortgage issubject to lapse because of the termination of a leasehold rights with theexpiration of lease. This precedent is illogical in view of the fact that itemphasized only a usufructuary function of the leasehold rights in spit ofthat Civil Code invest it with a function of security as well. In the following, to determine why the precedent didn't allow amortgagee to execute the mortgage on leasehold rights after theexpiration of lease, I will examine the legal nature of a mortgage,leasehold rights, and a mortgage on leasehold rights, and the next thingis to examine the stance of academy and precedents on the effectiveapplication of the a mortgaged leasehold rights after the expiration oflease, and the last thing is to discuss the way to vitalize the system ofa mortgage on leasehold rights.