抵當權에 기한 妨害排除請求의 許容範圍

日本에서의 學說과 判例를 參照하여

Mortgage is for grasping only the exchange value of a mortgage object, and its establisher occupying and using the object, so having a third party use the object or separating the subordinated object from the mortgaged property does not infringe the mortgage. That is, mortgage is a non- possession security, so the mortgagee can not intervene in using and benefiting the mortgaged property. Also mortgage is a right to preferentially receive payment to the exchange value of an object, and the right to use and benefit the property still resides with the establisher, so the owner of a mortgage land or third party constructing a building on the land by possession title can be said to fall under the exercise of use and benefit right. However, the establisher can dispose of and use the property even after the establishment, but is not allowed to manage and use the object threatened to the mortgagee s dominant power, that is, that of exchange value and that of disposal vale as its prerequisite. Mortgage does not deprive the establisher of its use and benefit right, but preferentially receives the payment from the property, so the establisher is obliged not to reduce the property value, that is, keep ‘the security value’. This obligation to keep this security value is grounded on the security relation ruled by good faith, so naturally imposed on the establisher. In addition, if the obliger󰡑s credit status is at risk due to dishonor, or the mortgagee is entitled to execute the mortgage for credit collection, the mortgagee needs to collect the credit through auction execution, and for auction realization like stability of auction procedures, the mortgagee s benefits to execute mortgage and realize the land exchange value need to be more valuable than the property owner s use benefits. Thus, the right to realize the auction object through the auction procedure and preferentially receive the secured liabilities of mortgage can be said to the fundamental content of mortgage, so in case of any infringement in this basic content, in other words, high feasible degradation of a optimal successful price at the auction procedure, and damaging the realization power of mortgage may be considered to have an adverse effect on the realization power, and the mortgagee can claim the obstacle elimination such as suspension of the infringement act. Thus, the establisher s or obliger s reduction acts of exchange value can be deemed as infringing on the mortgage, and if the mortgage establisher on a empty land is constructing a new building, while the mortgagee enters into the execution of the mortgage, whose construction act is feared to impede the proceeding of the auction procedure, and damage the mortgagee s realization right, then for the smooth auction of the land, the prohibition of construction act on the land can be pursued as a claim to eliminate the obstacle by statutory mortgage. This is a preservative disposition for compulsory management system or doe sale recognized in our civil execution law, which is necessary for balancing with the procedural law for property damage prevention.