抵當權과 附從性

Mortgage and Appendant Nature

Conclusion of this Supreme Court decision is in compliance with the actual reality of transactions but logical courses of making such a conclusion is not proper. It is reality that there are many cases established like the same method of the precedent in transactions of real estates with shortage of transaction prices. Therefore, if we make a precedent of validity or invalidity of mortgages established in this method only from the viewpoint of ‘numerus clausus der Sachenrechte’ and appendant nature, there are dangers to lack validity in specific cases. However, we cannot discuss about validity by making an inference of unclear deliberation of related parties indefinitely. Therefore, it seems like right to provide customary laws validity regarding establishment of such a mortgage. Of course, we may need to have more researches and discussions about its functions, requirements, and limits through investigation of realities of transactions.