전세권저당권에 관한 대법원 판례의 검토―「대법원 1999. 9. 17. 선고 98 다 31301 판결」과 「대법원 2014. 10. 27. 선고 2013 다 91672 판결」을 중심으로―

Because the Supreme Court’s judicial precedents affect legal life of many citizens seriously, it is very important. Therefore in this thesis, I studied the problems of the Supreme Court’s judicial precedents about the mortgage that is established on chonsegwon((Below, It shall be called the chonsegwon-mortgage. Korean Civil Act Article 371), especially 「Korean Supreme Court 1999. 9. 17. declaration 98 다 31301 judgment(Below, It shall be called precedent [1])」 and 「Korean Supreme Court 2014. 10. 27. declaration 2013 다 91672 judgment(Below, It shall be called precedent [2])」. 1. Review of Terms and establishment of the chonsegwon-mortgage ① Duration of Chonsegwon in precedent [1] and precedent [2], subject matter of chonsegwon in precedent [1], chonsegwon that is subject matter of mortgage in precedent [1] and precedent [2], the power of using the matter and taking profits in chonsegwon in precedent [2] should be changed. So I proposed appropriate terms. ② following the precedent [1], the chonsegwon-mortgage is established by only consent of the person having chonsegwon. But because the chonsegwon-mortgage is established by contract, this precedent [1] is not right. So I proposed appropriate a sentence. 2. Review of Chonsegwon-Extinction Due to Expiration of Period and Registration Precedent [1] stipulates that chonsegwon ceases to exist of course without cancellation-registration in the case chonsegwon extincts due to it’s expiration. But this precedent [1] is not right. So I proposed appropriate terms and a sentence. 3. Review of Subject Matter of Mortgage That Is Established on Chonsegwon Precedent [1] and precedent [2] stipulate that subject matter of chonsegwon is only the power of using the matter and taking profits. In my opinion, when the mortgage is established on chonsegwon, right to request return of deposit money is pledged due to the appendant nature. In this case, securing power of chonsegwon is subject matter of mortgage, and secures right to request return of deposit money. But in the case that the parties make a special contract establishing mortgage only on chonsegwon, the special contract comes into effect. Precedent [1] and precedent [2] stipulate that buyer obtains only the power of using the matter and taking profits when chonsegwon was auctioned off on the strength of the mortgage. And then, by doing this, there are many problems. I presented my views that deal with these problems properly. 4. The Relationship Between Chonsegwon and Right to Request Return of Deposit Money Because of precedent [1] and precedent [2] stipulating that subject matter of chonsegwon is only the power of using the matter and taking profits, there are many problems especially subrogation of chonsegwon-mortgagee . After studying these problems in depth, I presented my views that deal with these problems properly.