과실에 미치는 저당권의 효력- 저당권의 성질에 대한 재고를 겸하여 -

The Korean Civil Code stipulates in art. 359 that the mortgage extends to the fruits which the mortgagor has obtained or can obtain from the mortgaged immovable after it had been judicially attached. Until now rather little attention has been paid to this provision; the cases which are based upon it are also rare. But from the dominant viewpoint which insists that the mortgage only goes for the immovable’s exchange value, this rule appears to be rather an anomaly, which in turn asks for a justification. This paper attempts to answer this question by properly understanding this article’s meaning. The author submits that the mortgage potentially extends to the immovable’s fruits even before its attachment, whereas they are released from liability when they are obtained according to the immovable’s ordinary and usual use. However, such a release becomes forbidden with the attachment taking effect. In this context the procedural aspects of the liability are also researched. In the end it is shown that an approach in terms of exchange value is theoretically incorrect and that the mortgage can be better understood as a right to realize the immovable’s value in various ways. At the same time, the dominant theory of so-called modern mortgage is criticized from historical experiences.