저당재산의 자유로운 양도 허용과 추급효 인정에 관한 고찰 - 2020년 중국 민법전의 저당권 규정을 중심으로

• 영문명: A study on the free transfer of mortgaged property and the recognition of the overtake effect : Focusing on the mortgage provisions of the 2020 Chinese Civil Code
• 발행기관: 충북대학교 법학연구소
• 저자명: 장석천(Seok Cheon Jang)
• 간행물 정보: 『법학연구』第36卷 第1號, 311~332쪽, 전체 22쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2025.06.30

국문 초록

China has resolved the problems of duplication and conflict in existing single laws (such as the Contract Law, Property Law, and Security Law) and established a unified civil law system by enacting the Civil Code in 2020. Among these, the most noteworthy provision is Article 406 of Part 5, “Property Rights” of the Civil Code, which contains provisions that are essentially contradictory to Article 191 of the existing Property Law. Article 191 of the Real Property Act prohibits the disposal of mortgaged property without the prior consent of the mortgagee, and recognizes the existence of the mortgage only when such consent is obtained. This contributed to the protection of the rights of the mortgagee, but it severely restricted the freedom of the disposer to transfer, and had a negative impact on practice in terms of financial transactions and asset liquidity. In order to solve these problems, Article 406 of the Civil Code clearly stipulates that even if it is mortgaged property, the settlor can freely dispose of it and the mortgage right is not extinguished even after the disposal. In other words, by recognizing the enforcement power of the mortgage right, it has shifted to the direction of securing the protection of the rights of both the right holder and third parties and the safety of transactions. This regulation faithfully reflects the traditional property law principles of public disclosure, the general effect of property rights, and the absoluteness of property rights, and is also having a positive effect on the asset distribution structure in practice. This paper analyzes the legal legitimacy, legislative background, and practical implications of this institutional change, thereby shedding light on the modern transformation of China's security rights law from both theoretical and practical perspectives.

목차

Ⅰ. 서론

Ⅱ. 『물권법』 제191조의 논의

Ⅲ. 민법 제406조의 적용

Ⅳ. 맺은말

참고문헌

키워드

중국 민법 저당권 추급효 저당물의 제3취득자 저당물 양도 Chinese Civil Code Mortgage Overtake effect Third party acquirer of mortgaged property Transfer of the object of mortgage