전세권의 본질과 전세권저당권의 실행

The Essence of the Chonsegwon and the Fulfillment of the Chonsegwon mortgaged

The Chonsegwon(right to lease on a deposit basis) has a competency of a usufruct and a competency of a hypothec. Because the Civil Code Section 306 allows a person with a chonsegwon to use his leasehold right as collateral. To the construction of the Civil Execution Code Section 91 Ⅲ and Ⅳ, the essence of the Chonsegwon is a competency of a usufruct. As the duration of the chonsegwon expires, the chonsegwon is not extinguished if the deposit money does not return. And the creditor of the chonsegwon transfers the chonsegwon and the claim on deposit money to the Third, in this case the Third has no use for a fixed date of the Civil Code Section 450. Therefore the adjudication of the Korean Supreme Court(2005.3.25. Sentence 2003다35659 the adjudication) must be modified. And the Civil Code Section 371 stipulates that the chonsegwon has been mortgaged. The Korean Supreme Court adjudicated on the chonsegwon mortgaged as in the following: In the event that chonsegwon has been mortgaged, the object of mortgage is not the claim on deposit money but the chonsegwon; as the duration expires, the chonsegwon is rightly extinguished even without registration. In this case, the chonsegwon mortgaged is rightly extinguished along with the extinguishment of the chonsegwon, and the pledgee who have an intention of the chonsegwon may not assert his mortgage against the owner of real estate, i.e., the object of the chonsegwon. And in such a case, the claim of deposit money may be valid, being substituted by the chonsegwon, i.e., the object of mortgage. In this regard, Civil Code Section 370 and 342 stipulate that the person with the chonsegwon mortgaged may exercise his surrogation right. Then, without the order of seizure or collection, the foregoing pledgee may not claim deposit money from the person with the chonsegwon. But, in my opinion, as the duration expires, the chonsegwon is not extinguished. As a result, the person with the chonsegwon mortgaged auctions the chonsegwon and has a dividend in the amount of money obtained for sold by auction