저당권부채권의 처분과 저당권의 효력

Mortgage is a major security group, but it is only possible to recover the investment by disposing of the mortgage before the repayment of the mortgage. In such cases, the mortgage is disposed of with the secured claim due to the appendant nature of the mortgage. But the Korean Civil Law only prohibits the separate disposition of mortgage rights and does not prohibit the separate disposition of only secured claims. Therefore, claims secured by a mortgage are recognized not only as a separate transfer of secured claims, but also the creating pledge of Rights of secured claims under special circumstances. In this case, there is a difference in interpretation of whether or not the mortgage right is extinguished, but the disposition of the secured claims includes transfer and creating pledge. Therefore, in the same way as the transfer of mortgage claims, it is interpreted that the mortgage right is extinguished even in the case of a creating pledge of mortgage claims. In addition, if a mortgage right is set up to secure the claim after the pledge of claims is established, the effect of the pledge extends to the mortgage right. However, it is reasonable to interpret the mortgage rights as extinguishing, as in the transfer and create pledge of mortgage claims, if there are special circumstances in which a pledge is set only for claims. On the other hand, in the case of transferring or creating pledge mortgage claims, requisites for counteraction for transfer of claims must be provided. In addition, according to conventional wisdom and precedent, the transfer of mortgage rights due to the disposition of mortgage claims, etc., is subject to change in real rights due to legal acts, and therefore must be disclosed. However, according to conventional wisdom and precedent, there is a gap between the disposition and registration of secured claims. Therefore, there is a question about the effectiveness of the mortgage right because the subject of the claim and the subject of the mortgage are separated. On the contrary, if the transfer of mortgage rights due to the disposition of mortgage claims is interpreted as a change in real rights according to the provisions of the law, there are no problems in conventional wisdom and precedent. In particular, if this is interpreted as a change in real rights under the provisions of the law, the mortgage rights are transferred along with the disposition of the mortgage claims, which is advantageous for the protection of the transferee and the legal relationship is simplified. However, compared to the German Civil Code or the Swiss Civil Code, which prescribes the appendant natures of the mortgage right, Article 361 of the Civil Code is not sufficient as the basis for the recognition of the appendant nature of the mortgage right. Therefore, there is a need for legislative improvement to Article 361 of the Civil Code.