전세권저당권자의 법적 지위

Legal Status on the Mortgagee who has established Mortgage upon Chonsekwon

Chonse is one of the traditional institutions peculiar to Korea, which has been developed since the closing days of Chosun Dynasty. The structure of chonse is as follows ; A person who is going to rent one or several rooms, or a whole house, gives a considerable amount of money(so called chonse money) to the owner at the time of conclusion of the leasing contract. And at the end of the leasing contract, the lessee gets all that money back from the owner after he has used the object. In this case, extra money is not paid for rent. The interest that accrues from chonse money is considered as the rent for the object. The existing Civil Code had pulled up the lessor s position to the real right(so called chonsekwon) in order to protect the lessee. Moreover in order to ensure the person who has chonsekwon to draw back his invest capital, the existing Civil Code permits him to assign chonsekwon to another person or provide it as security(Art. 306). According this Article, he can establish mortgage upon chonsekwon. Where a mortgage is established upon chonsekwon, the mortgagor cannot take any action to extinguish it without the consent of the mortgagee(Sect. 2 of Art. 371). By the way, where a mortgage is established upon chonsekwon, one question arises firstly ; what kind of legal status does the mortgagee have on earth? In connection with this matter, many legal problems exist. Namely when the duration period of a chonsekwon has matured, does the chonsekwon extinguish and consequently does the mortgage which has been established upon a chonsekwon also extinguish? If so, how can the morgagee have satisfaction of his claim? In this theses the above problems are examined in connection with the legal status on the mortgagee who has established mortgage upon chonsekwon. In regard to this subject, the standpoint of the precedents of the Korean Supreme Court is as follows ; In the case where a chonsekwon has been mortgaged, the chonsekwon extinguishes at the time when the duration period of a chonsekwon has matured and consequently the mortgage which has been established upon a chonsekwon also extinguishes. Therefore the mortgagee may not insist his mortgage upon the owner who is the other party to a contract of chonsekwon. However, if the mortgagee levies an attachment on the claim for return of chonse money as the substitute for chonsekwon and receives an order of collection or assignment thereupon from the court, or he demands his dividend from the court in the compulsory execution procedure which is taken by a third person, then he can demand the chonse money from the owner of the object. But the standpoint of the Korean Supreme Court is fallible. In this case, it should be thought as follows ; When the duration period of a chonsekwon matures, the chonsekwon does not completely extinguish ; namely only the usufructuary competence extinguishes, but the security competence remains. So the mortgage which has been established upon the chonsekwon continues to exist upon the chonsekwon. However, the structure that the mortgage exists upon the chonsekwon has substantially the same meaning as that the pledge is established upon the claim for return of chonse money. If that is granted, then the provisions regarding the pledge of right(Sect. 1 of Art. 349, Art. 353 & 354 of the Civil Code) can be applied mutalis mutandis to this case in order to protect the mortgagee s preferential right to obtain satisfaction of his claim out of the object. In addition, the person who established chonsekwon upon his property can set up against the mortgagee who has established mortgage upon chonsekwon defences, only if the mortgagee was aware of them, when he established mortgage upon chonsekwon. When the person who established chonsekwon upon his property is dir