저당권에 기한 방해배제청구권

A right to sue an injuction for waste based a mortgage

Recently, Supreme Court of Korea has folded the abstract argument that can recognize the injunction of waste by mortgagee under the scheme called Waste by possesion = Waste to the foreclosure , and furthermore, even if the mortgagor constructs the building on the land that the mortgage has been established, it recognizes the injunction by reason of Waste by construction of a building = Waste to the foreclosure . Something and other arguments are contradictory for this. There is the case to reflect this on the revision proposal of the civil law. Looking into the legislative cases relative to the above argument, it is as follows: Firstly, the value right theory is not the unchangeable absolute concept but only the comparative one. And the contents of the governance of the objective for mortgage is different as per the legal system such as the continental legal system or the one of England/USA and etc. It could be confirmed in the case of Japan that it will be able to be modified as per the flow of the era even under the same legal system. Secondly, it can be noticed that the legal system for Adjustment between mortgage and easement is different per each country. In this relation, the function for the breadth and narrowness of the value, which is grasped as the mortgage, and the function, which the governance of the objective for mortgage is realized, can be presumed. In Germany, the exchange value and the use value are strictly divided, and the mortgagee does not interfere the use value until execution of the mortgage. The above function relations never exists. In U.S.A., as it can be known from the origin of the mortgage that bestows the position corresponding to the tenant on the mortgagor, the mortgagor has the position as the usual and proper in course of good husbandry and therefore, the boundary recognizing the impairment of mortgage is comparatively wide, and the mortgagee can currently interfere in the impairment of security even before execution of the mortgage. All the above two functions can be recognized. Meanwhile, in Japan, it trends toward the direction that the mortgage expands the effectiveness against the use right from the one that the limit is clearly demarcated relative to such realization method. Especially, the precedent of Japan for the injunction of waste by mortgagee is similar to the legal system for mortgage of U.S.A. However, even following not only the viewpoint, which the mortgagee governs the value of a real property, but also the viewpoint, which it governs the rents and profits which the mortgagee could have received besides the value of a property, the point, which the mortgagee can not interfere the part for use among the use value governed by the mortgagee, is all the same. Because the point, which the mortgage is grasped as the unoccupied security right, is common. The core mortgagor has the right to possesion of the mortgaged real estate (The part for use among the use value as per the viewpoint), and naturally, the recognition scope of the injunction of waste by mortgagee in the boundary between the use value and the exchange value will be expressed. The problem lies in such boundary. In order to expand the effectiveness of the mortgage even up to infringement of the non-occupancy of the mortgage, as known in the case of Japan, the basis to justify the expanded application of the injunction of waste by mortgagee shall be sought even in establishment of the duty of care or even in endeavor for verification in the actual lawsuit. Meanwhile, in order to review that the specific fact can become the reason for exclusion of obstruction, it is required to analyze such requisites that are different from the basis of the injunction of impairment. Coming to think of it, it is judged that the actu