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학술연구/단체지원/교육 등 연구자 활동을 지속하도록 DBpia가 지원하고 있어요.
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초록· 키워드
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This case(the Supreme Court 1999. 9. 17. pronouncement, 98Da31301 judgment) denies the auction claim of hypothec of Jeonse-right(Leasehold rights) after Jeonse right’s term of existence, because a usufructuary right of Jeonse right becomes extinct after Jeonse right’s term of existence.
And the Supreme Court has an attitude that a creditor of hypothec of Jeonse-right should exercise his rights by a principle of Surrogation and by the means of garnishment and an order of collection or an assignment order about credit of return of the deposit from a court after Jeonse right’s term of existence before an obligator of Jeonse-right pays off the credit of return of the deposit to the creditor of Jeonse right.
However, such an attitude of this case makes an error, because the credit of return of the deposit is an conditional and fixed-term receivables when the Jeonse-right comes into existence, is not an object of compensation.
The legal character of hypothec of Jeonse-right is a kind of the right of pledge of the right, and it belongs to the responsibility right of double pledge of the right.
Therby, as if a codicil to a registration on the credit of hypothec is presumed as a right of pledge of the right, a registration of hypothec of Jeonse-right is presumed as a codicil to a registration, it is right that the creditor of hypothec of Jeonse-right exercises his rights to the obligator of Jeonse-right directly.
Namely, it should be under guarantee that a creditor of hypothec of Jeonse-right exercises his rights to the obligator of Jeonse-right as if he is an absolute creditor of real rights granted by way of security. So the case mentioned earlier should be changed.
And the Supreme Court has an attitude that a creditor of hypothec of Jeonse-right should exercise his rights by a principle of Surrogation and by the means of garnishment and an order of collection or an assignment order about credit of return of the deposit from a court after Jeonse right’s term of existence before an obligator of Jeonse-right pays off the credit of return of the deposit to the creditor of Jeonse right.
However, such an attitude of this case makes an error, because the credit of return of the deposit is an conditional and fixed-term receivables when the Jeonse-right comes into existence, is not an object of compensation.
The legal character of hypothec of Jeonse-right is a kind of the right of pledge of the right, and it belongs to the responsibility right of double pledge of the right.
Therby, as if a codicil to a registration on the credit of hypothec is presumed as a right of pledge of the right, a registration of hypothec of Jeonse-right is presumed as a codicil to a registration, it is right that the creditor of hypothec of Jeonse-right exercises his rights to the obligator of Jeonse-right directly.
Namely, it should be under guarantee that a creditor of hypothec of Jeonse-right exercises his rights to the obligator of Jeonse-right as if he is an absolute creditor of real rights granted by way of security. So the case mentioned earlier should be changed.
목차
Ⅰ. 서론
Ⅱ. 전세권의 법적 성질
Ⅲ. 전세권저당권에 대한 물상대위성 인정 여부
Ⅳ. 결론
참고문헌
Abstract
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UCI(KEPA) : I410-ECN-0101-2013-360-000849927