This thesis is a study of claim for preclusion based on mortgage that explains the nature of mortgage with examples of precedents from various countries and presents a detailed plan to propose it as a law after looking into the precedents of Korea's claim for preclusion and the requirements of the claim for precedent. A mortgage is a promised right granted by security that can be reimbursed with priority from the object when you do not accept the transfer of the object from the debtor or outsider party as a mortgage of the bond. Stated from article 370, our civil law follows article 214 and the mortgage can claim for preclusion for the mortgage.
For such case, according to the precedent, as the mortgagee has the owing rights for the exchange value of the mortgage, when the owner of the mortgage object or a outsider party is expected to devalue the exchange value of the real estate, it is stated that the mortgagee can flex the rights for the claim of preclusion and shows it can expand the scope of the claim for exclusion based on mortgage. Such precedent originates from the lack of law protection of the original value of the mortgage when the mortgagee impairs the mortgage value.
According to the theory of value of mortgagee, as the mortgage only find the value of mortgage in general, issues of the duplication of scope between the usage profit of the mortgage setter and claim for preclusion of the mortgage arises and therefore it is important to clarify and set the requirement and scope of the claim for preclusion.
For a salvage method for infringement off mortgage, there are few studies that goes in detail for the claim for preclusion based on mortgage. Whether the content is similar to the claim for preclusion based on ownership stated in article 370 or whether there are other points to consider for the scope of acknowledgement or settings are very unclear. Such doubt comes from the fact that apart from the ownership that is stated for the mortgage based on the claim, it is a peculiar type of right that it only states the exchange value of the object and the usage and profit of the object falls into the setter himself. Therefore, the mortgage cannot get involved in the usage and profit of the object and the claim for preclusion is out of reach in such scope.
In order to set the requirement and scope of the claim for preclusion based on mortgage, we need to look into the formation fo the mortgage and the law and precedents of the claim for preclusion based on mortgage in Germany, Japan and USA. Additionally, upon looking into the previous study and precedents of the Supreme Court in Korea, we can find the improvement points compared to the foreign laws and accordingly present a direction of proposing a law that revises the stature of article 241 of civic law and newly set an independent stature that has a separate requirement and content for the claim for preclusion based on mortgage.