法定質權·法定抵當權에 관한 考察

Abstract

In our former civil-code, there were the institutions of the Lien, protecting the poor and the particular creditors. But, the new one has thoroughly abolished them on the reason of their lack of effectiveness and, because they cause general creditors and especially the Mortgages to meet unexpected expenses. And some of them that give effect are selected to be included to the Pledge and Mortgage Recognized by Law. Recently, the gab of the wealth and the poor keeps its widening and thereupon it would be a fairly good question if, considering the urgent need of protecting the poor, the abolishment of the Night of Priority Claim is reasonable. And now I am studying the questions as following : 1. Meaning of the Lien and its role. I study the Lien conceptionally and introduce foreign examples of legislation. 2. I study the contents, its role and two views on the interpretation of the Pledge and Mortgage Recognized by Law which are in part of the Lien and as well express by showing the foreign examples of legislation, that the Pledge and Mortgage Recognized in foreign civil law are much the same with the Lien in our former civil law. 3. I scrutinize the Right of Priority Claim approved in our commercial law for the particular creditors. 4. Comparing the two, the Lien and the Pledge and the Mortgage Recognized by Laws I introduce the difference of the two and the views prevailed among the academic society which were pros and cons when the abolishment of Lien were on discussion and my personal opinion on these is to be expressed. Reviewing the above statements, we come to the conclusion that the Lien should be revived in civil law or a special law should be legislated for the protection of poor creditors, since the Pledge and Mortgage Recognized by Law are no more than a means of the obligations relating to the lease or lease premises of the lessor of immovable property and are no more of a contributor in protecting the poor creditors.