위험제한법 입법 이후의 독일 보전토지채무의 변화

Abstract

At the time of the institution of the German Civil Code(BGB), the security land charge was recognized only with case and scholarly opinions, but in 2008, the German Civil Code was amended in accordance with the Risk Limitation Act. In Germany, the security land charge occurs at the place of the mortgage, and it is also widely used. It guarantees the claim in question through the security contract between the creditor and the debtor, in other words through the land charge existing with the security contract. The security land charge can transferred separately from the secured claim. This is due to the fact that the security land charge is completely independent of the secured claim. It is also recognized that the assignee can effectively assert his good faith acquisition through the application of the principle of public faith. But with the adoption of the Risk Limitation Act, Paragraph 1192 1a BGB is newly amended. Indeed, legislators are affirmed in the execution of the security land charge for the purpose of debtor protection. This enables the debtor to raise an objection based on the security contract with the original creditor to the assignee who acquired the security land charge in good faith.