법정담보물권이라는 개념의 유용성의 한계 - 대법원 2005. 10. 13. 선고 2004다26799 판결을 계기로

Limitations on Usefulness of “Statutory Real Right granted by Way of Security” - In connection with the decision of Korean Supreme Court 2005. 10. 13. announcement 2004da26799 -

&nbsp;&nbsp;A Real right granted by way of security is the priority in comparision with other bond, there are two types of rights. One is a statutory real right granted by way of security and the other is security right by contract. Statutory real right granted by way of security is different from security right by contract in establishment. As Statutory real right granted by way of security, 3 kinds of rights those are the right of retention, statutory pledge, statutory mortgage, are admitted in the existing Korean Civil Code. But judicial precedents and a theory have admitted all kinds of privileged debts (for example, privilege of wage claim, lien on a ship) as statutory real right granted by way of security.<BR>&nbsp;&nbsp;The latest judicial precedent(the decision of Korean Supreme Court 2005. 10. 13. announcement 2004da26799) also declared that privilege of wage claim, has priority than lien on a ship. Because both privileged debts(privilege of wage claim, lien on a ship) are statutory real right granted by way of security and we have to rank all of statutory real right granted by way of security.<BR>&nbsp;&nbsp;However, if we followed logic of this precedent, wages of a sailor are more later than wages of other worker in protection. and it is not proper that all kinds of privileged debts think one thing(statutory real right granted by way of security). if we think various kinds of privileged debts as one thing, the meaning of statutory real right granted by way of security will be only classification concept. It is hard to give to any more meaning.