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The Mortgage's Legal Relation for “Chonsegwon”

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2021, 9(3), pp.187-211
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law
  • Received : August 7, 2021
  • Accepted : August 27, 2021
  • Published : August 31, 2021

kimsangmoo 1

1대구과학대학교

Candidate

ABSTRACT

This paper will discuss about when the period of contract has expired, the Mortgage legal relation which object is Chonsegwon(right to registered lease on deposit basis), and emphasize on Chonsegwon for argumentative purposes operation process. To understand the Chonsegwon legal nature, which was required by the Mortgage legal relation, the theory said there were rival opinions between "pure usufruct real right", "security real right" and "possess the pure usufruct real right and security real right". When the Civil Code enacted, the legal nature was pure usufruct real right. However, in 1984 from the Civil Code reform, the preferential payment right which was recognized by security real right granted to the creditor of lease, thus most of the theory said that the legal nature was the third one, it was the same shown in previous literature. Then view whether the Chonsegwon and Chonsegwon Mortgage become extinct ineffective when its existence period was expired, we can see whether or not Chonsegwon will be extinct. The theory and precedent thought pure usufruct real right was lost. Despite whether or not Chonsegwon Mortgage will be extinct, they thought the Chonsegwon was lost. As Chonsegwon Mortgage' legal position, connected with Chonsegwon auction claim's commendation, before the its existence period is lost it has the chance to transfer, which owned pure usufruct real right. Therefore, Chonsegwon mortgagee can claim the auction for the Chonsegwon, but after its existence period was lost. If we use pure usufruct real right lost theory, the creditor of lease cannot transfer the pure usufruct real right, but can only transfer Chonsegwon restoration claim and security a real right together. So, we can say after the existence period was expired, Chonsegwon mortgagee cannot claim the auction. As for the method of execution, Chonsegwon mortgagee depended on the Civil Code Article 370, Article 342 and Civil execution law Clause 2 Article 273. (It's same to the old Civil Proceedings Act Article 733 Clause 2) can take the seize, an order of collection and an assignment order from the Chonsegwon return receivables, or from the other creditor's execution procedure distribution postulation can gain receivables. Like the Civil Law Amendment, "Mortgage for Chonsegwon, mortgagee can demand the deposit money refund receivables by himself within the preferential payment right. It's depended on Clause 3 Article 353." We think it is the good measures to apply to the Pledge of Claims's operation process.

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This paper was written with support from the National Research Foundation of Korea.
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