부동산이용권과 저당권의 관계 (A Relationship between a Right to Use Real Property and Juh-dang-kweon (Mortgage): Focusing on Proposed Amendments to the Korean Civil Code)

서지정보

· 발행기관 : 한국민사법학회
· 수록지 정보 : 민사법학 / 75권 / 43 ~ 96페이지
· 저자명 : 김재형

초록

In the context of Korean property system, a juh-dang-kweon (mortgage) is a security right allowing for the use of real property involving two bifurcated values. Namely, the mortgager retains possession of the property and employs the value in use, while the mortgagee benefits from the value of property in exchange. As such, under modern Korean property law, the concept of mortgage is considered rational and highly effective in nature. Yet the creation of a mortgage on real property may result in a conflict between the right to use on the part of the mortgagor and the rights of the mortgagee on the other. To address this issue, several legal instruments have emerged and developed over the years.
This paper studies how the Korean Civil Code (hereinafter “Code”) regulates the relationship between the mortgagor's right to property use and the mortgagee's right to a mortgage created on immovable property (hereinafter “Two Rights”), and how the latest reform proposal of the Code takes on the issue. To this end, I will first go through the provisions of the Code governing the relation between the Two Rights and move on to probe the subject of distinction between value in use and value in exchange. I will then conclude by introducing the particulars of proposed amendments by the Code Amendment Committee ("Committee"), which was established under the auspices of the Korean Ministry of Justice in 2009, to the Code.
The relationship between the abovementioned rights is best understood in the context of what happens before and after the enforcement of a mortgage. Prior to such enforcement, the mortgager may use and enjoy the benefits of real estate; further, both a mortgage and a right to use may be concurrently created on the same real property. When a mortgage is created, the value in use is reserved to the owner of the property and to anyone who is entitled to use it. Seen in this context, juh-dang-kweon and the right to use can be said to coexist. Subsequent to the enforcement, however, the right of use lapses, unless such right subsists and trumps over the rights of the mortgagee. As a result, a divide between the value in use and value in exchange no longer remains relevant in that, upon enforcement, the nature of their relationship changes rather drastically. It is, therefore, questionable if a single theory can adequately accommodate and account for the effects of such a metamorphosis. The traditional theory on the right to values has distinguished between the Two Rights. This paper questions the wisdom and validity of that distinction by arguing that the value in exchange anticipated by the mortgagee is not entirely irrelevant to the use value.
Like other legal systems, the relationship between the right of property use and mortgage-related rights is not decided a priori. Legal treatment of such relationship may well vary from jurisdiction to jurisdiction, and the provisions of each nation’s related laws and their interpretation will in effect determine juridical treatment thereof.
The Committee's proposed amendment to the Code (“Amendment”) is a meaningful endeavor in that it shows how the current Korean legal system regulates the Two Rights. The Korean society has gone through radical transformations since the enactment of the Code, and, in the process, use of real estate has also diversified. As a result, a legal conflict between the Two Rights is not uncommon. The Amendment attempts to resolve issues not thought of at the time of the enactment.
The Amendment ushers in little change in terms of the underlying relationship between the Two Rights, but it does recognize the mortgagee’s right to exclude based on juh-dang-kweon by newly introducing an explicit provision to that effect. The Amendment also contains revisions on the provisions of the Code relating to subrogation in rem (i.e. secured creditor’s right to the proceeds replacing the secured property when it was destroyed, demolished or publicly expropriated), legal right to use land surface, and right to auction off mortgaged land and any building thereon, respectively. While drawing up such provisions, the Committee not only incorporated the existing judicial precedents and legal doctrines, but also referred to related provisions and theories of overseas jurisdictions including Germany and Japan. In short, the Amendment defines the relationship between the Two Rights in clearer terms, while according strong protection to the mortgagee. It is expected that, once adopted, such a change will result in more efficient use of properties at large than previously possible.

영어초록

In the context of Korean property system, a juh-dang-kweon (mortgage) is a security right allowing for the use of real property involving two bifurcated values. Namely, the mortgager retains possession of the property and employs the value in use, while the mortgagee benefits from the value of property in exchange. As such, under modern Korean property law, the concept of mortgage is considered rational and highly effective in nature. Yet the creation of a mortgage on real property may result in a conflict between the right to use on the part of the mortgagor and the rights of the mortgagee on the other. To address this issue, several legal instruments have emerged and developed over the years.
This paper studies how the Korean Civil Code (hereinafter “Code”) regulates the relationship between the mortgagor's right to property use and the mortgagee's right to a mortgage created on immovable property (hereinafter “Two Rights”), and how the latest reform proposal of the Code takes on the issue. To this end, I will first go through the provisions of the Code governing the relation between the Two Rights and move on to probe the subject of distinction between value in use and value in exchange. I will then conclude by introducing the particulars of proposed amendments by the Code Amendment Committee ("Committee"), which was established under the auspices of the Korean Ministry of Justice in 2009, to the Code.
The relationship between the abovementioned rights is best understood in the context of what happens before and after the enforcement of a mortgage. Prior to such enforcement, the mortgager may use and enjoy the benefits of real estate; further, both a mortgage and a right to use may be concurrently created on the same real property. When a mortgage is created, the value in use is reserved to the owner of the property and to anyone who is entitled to use it. Seen in this context, juh-dang-kweon and the right to use can be said to coexist. Subsequent to the enforcement, however, the right of use lapses, unless such right subsists and trumps over the rights of the mortgagee. As a result, a divide between the value in use and value in exchange no longer remains relevant in that, upon enforcement, the nature of their relationship changes rather drastically. It is, therefore, questionable if a single theory can adequately accommodate and account for the effects of such a metamorphosis. The traditional theory on the right to values has distinguished between the Two Rights. This paper questions the wisdom and validity of that distinction by arguing that the value in exchange anticipated by the mortgagee is not entirely irrelevant to the use value.
Like other legal systems, the relationship between the right of property use and mortgage-related rights is not decided a priori. Legal treatment of such relationship may well vary from jurisdiction to jurisdiction, and the provisions of each nation’s related laws and their interpretation will in effect determine juridical treatment thereof.
The Committee's proposed amendment to the Code (“Amendment”) is a meaningful endeavor in that it shows how the current Korean legal system regulates the Two Rights. The Korean society has gone through radical transformations since the enactment of the Code, and, in the process, use of real estate has also diversified. As a result, a legal conflict between the Two Rights is not uncommon. The Amendment attempts to resolve issues not thought of at the time of the enactment.
The Amendment ushers in little change in terms of the underlying relationship between the Two Rights, but it does recognize the mortgagee’s right to exclude based on juh-dang-kweon by newly introducing an explicit provision to that effect. The Amendment also contains revisions on the provisions of the Code relating to subrogation in rem (i.e. secured creditor’s right to the proceeds replacing the secured property when it was destroyed, demolished or publicly expropriated), legal right to use land surface, and right to auction off mortgaged land and any building thereon, respectively. While drawing up such provisions, the Committee not only incorporated the existing judicial precedents and legal doctrines, but also referred to related provisions and theories of overseas jurisdictions including Germany and Japan. In short, the Amendment defines the relationship between the Two Rights in clearer terms, while according strong protection to the mortgagee. It is expected that, once adopted, such a change will result in more efficient use of properties at large than previously possible.

참고자료

· 없음