현행 전세권저당권의 문제와 개선방안에 대한 고찰

A study on Problems and Improvements of Present Jeonsegwon Morgaged

Under Civil Code Article 371, the settlement of mortgage on leasehold rights("Joensegwon" in Korean) is possible. As a result, a person who has leasehold rights (namely a leaseholder) has been able to get financing using it. In other words, the leaseholders pay a deposit by 70~80 percent of a house price at once and get the right to use the house and take a benefit from it. Besides, the leaseholders get the credit of return of the deposit with the expiration of a lease, so financial institutions could accommodate them with a loan on the basis of the credit. That is, the financial institutions set up a mortgage on the leasehold rights under the trust that they could claim preferential payment with the credit of a deposit. However, it seems that the above system of mortgaged leasehold rights is not used effectively in actual financial transactions. It results from the fact that the right of preferential repayment cannot be actualized under the precedent in Korea that said the mortgage is subject to lapse because of the termination of a leasehold rights with the expiration of lease. This precedent is illogical in view of the fact that it emphasized only a usufructuary function of the leasehold rights in spit of that Civil Code invest it with a function of security as well. In the following, to determine why the precedent didn't allow a mortgagee to execute the mortgage on leasehold rights after the expiration of lease, I will examine the legal nature of a mortgage, leasehold rights, and a mortgage on leasehold rights, and the next thing is to examine the stance of academy and precedents on the effective application of the a mortgaged leasehold rights after the expiration of lease, and the last thing is to discuss the way to vitalize the system of a mortgage on leasehold rights.