전세권의 용익물권성과 담보물권성 분리에 따른 입법론적 고찰

• 영문명: A legislative approach to different natures of a usufructuary right and real rights guaranteed by security in regard to a right to lease
• 발행기관: 한국민사법학회
• 저자명: 오시영(Oh, See-Young)
• 간행물 정보: 『민사법학』제48호, 235~281쪽, 전체 47쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2010.03.31

영문 초록

It has been the commonly accepted view that a right to lease has dual natures of a usufructuary right and real rights guaranteed by security. A right to lease needs an obligee of lease and a settler in the aspect of a usufructuary right, and a right to lease needs a creditor and a debtor in the aspect of real rights guaranteed by security. However, the parties concerned are restricted to only two person that a creditor is same as an obligee of lease and a debtor is same as a settler. I think that it is not against the nature of real rights guaranteed by security even if parties concerned are divided to four persons. Because a settler of lease can receive key money from a creditor, and a an obligee of lease can transfer an obligatory right to others or pay key money by borrowing money from others. On the other hand a creditor of lease has a nature of fixed term and conditional claims, it is possible to return the balance, after subtraction of the amount of damages from key money, to a creditor of lease on the condition that an obligee of lease deliver the objective of lease and cancel registration of lease when it arrives the time for repayment of key money. Accordingly, it is necessary to recognize that a right to lease has dual nature of a usufructuary right and real rights guaranteed by security, and then a system of a right to lease should be managed in both aspects of usufructuary right and real rights guaranteed by security. I support the opinion that this argument makes it possible though the amendment of real-estate registration law. If this argument is hard from perspective of interpretation of law, I will suggest the ideas on the amendment of related provisions to a right of lease.

목차

Ⅰ. 서론

Ⅱ. 피담보채권으로서의 전세금의 법적 성질

Ⅲ. 전세권 중 담보권능에 대한 고찰

Ⅳ. 용익권능의 당사자로서의 권리에 대한 구체적 검토

Ⅴ. 담보권능의 당사자로서의 권리와 의무

Ⅵ. 결론

참고문헌

키워드

전세권 전세권자 전세권설정자 전세금반환채권자 전세금반환채무자 A right to lease a creditor of lease a settler of lease an obligee of lease an obligatory right