전세권저당권자의 보호에 관한 연구

Mortgage may have real property ownership for its object under the principle rule, above this Chonsegwon also can be the subject to the mortgage. Besides, Chonsegwon-holder can provide his rights to the third-person as a collateral. Therefore, the Mortgage for the purpose of Chonsegwon can be validly formed under the Korean civil act and it's called "Chonsegwon-Mortgage". Recently, "Chonsegwon" is used frequently because Chonsegwon-holders can collect their invested capitals by setting Mortgage to Chonsegwon. Generally, Chonsegwon-mortgagees create the Chonsegwon-mortgage believing that if Chonsegwon expires, they would be able to secure the "preferential payment right" from their deposit money. However, our precedents is clarifyng if Chonsegwon lapses cause of its expiration, that Chonsegwon would be completely over regardless of its registration and the force of that mortgage to the Chonsegwon would be disappeared subsequently. In addition, Chonsegwon-mortgagees couldn't claim their right to the owner of real property" Chonsegwon-mortgagees can exercise their rights by using method such as repossession, an order of collection, or an assignment order for the fund-return bonds. Also, the request for allocation in the execution proceedings of fund-return bond done by a third-person could be another method. With just following the precedent, there is a problem that Chonsegwon-mortgage doesn't correspond with Chonsegwon-mortgagees' intention, but also it doesn't work enough to protect the profit of Chonsegwon-mortgagees. There is a view that in order to secure the Chonsegwon-mortgagees' preferential payment force in substance, we can apply the pledge of credit to the execution of Chonsegwon-mortgage. In this case, Chonsegwon-mortgagees can demand directly for the Chonsegwon-setter to give the fund back and can be reimbursed superior to another creditors regardless of a repossession, an order of collection, or an assignment order for fund-return credit. For this reason, it could protect the Chonsegwon-mortgagees. However, there have been some negative opinions that this view isn't in the range of our law of reality system, Therefore, I think legislational review would be necessary for the effective protection of Chonsegwon-mortgagees' right. The revision of The Korean civil act 371-3 declares "For Chonsegwon-Mortgage, Mortgagee can claim fund-return bond directly in the range of preferential payment right. The Korean civil act 355-3 could also be applied to this case." This clause seems to be appropriate for the protection of "Chonsegwon-Mortgagee."