우선변제제도와 재산권 보호의 함수관계 - 헌재결 2006. 11. 30. 2003헌가14ㆍ15(병합)를 중심으로

A functional relation between the priority of performance and protection for property rights

&nbsp;&nbsp;Under Article 23 of the Constitutional Law, lawmakers have a control power for the property right. That is, they can make a decision (or formation) for the property right’s contents and scope of force pursuant to Article 23, Clause 1 of the Constitutional law and these formational powers are defined a type of the principle of law reservation by the Constitutional Court. On the basis of this view, lawmakers are able to form priority between rights and change this order of precedence in particular area with the respect of traditional legal system. It is a case in this point that they tended to switch the order of precedence between real rights and bond in private part and such events have been noticed everywhere.<BR>&nbsp;&nbsp;Construction for order of precedence may amend principle of equality and change existing right’s application order through the priority of performance. This system is supposed to ensure a priority of performance to specified creditor who meets certain legal conditions breaking the principle of creditor equality. Modifying general legal construction, this system has tended to protect the economical- disadvantaged or accomplish high public interest in particular area.<BR>&nbsp;&nbsp;Constitutional court ruled of last that the system of performance priority for depositors under Article 37, Clause 2 of the Act of Mutual Savings and Finance Company has infringed other’s equality and property rights. Majority of the judges believed that there is any good reason for the allegation that there is a difference between mutual saving and finance companies’ depository creditors and common creditors and between those companies and common banks. That conclusion, however, pass over the constructional weaknesses of those companies and responsibility of protection for depository creditor, and the system of performance priority has still played a important role in today’s financial system at that.