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논문 기본 정보

자료유형
학술저널
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저널정보
한국재산법학회 재산법연구 재산법연구 제25권 제1호
발행연도
2008.1
수록면
109 - 160 (52page)

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Our civil law regulates in Clause 357, which is the sole clause for the collateral mortgage, 'The mortgage can fix only the highest amount of the debts to be secured and establish it by retaining the fixing of the debts', but it actually does not expressively regulates the joint collateral mortgage, which is the relation between collateral security and collateral security. Namely, as any legal vacancy occurs, the legal relation of the joint collateral security is complicatedly spreaded through mixing of the legal principle of the collateral mortgage besides that of the joint mortgage. For this reason, the practical business for the auction and allotment avoids the different time allotment but prefers the simultaneous allotment. In case the different time allotment is exceptionally made, this allotment is made relying on the principle of the official service in charge. In can any problem for such allotment occurs in this respect, it will meet any complex interpretation theory. Among these, the treatment for the case, which the highest full amount was made as the preceding allotment in the different time allotment is Sentence 2005Da14502 Judgment of October 27, 2006 (hereinafter called as 'Objective Judgment'). Looking into the course reaching the objective judgment, it was decided being centered on fixing of the secured mortgage credit in the original judgment but as the Supreme court decides that Clause 368 of the civil law is also applied in the joint collateral security as it follows the partial fixing as per the leading case of the Supreme Court that sets up the theory for the partial fixing. However, the objective judgment is proper in its conclusion but it is not so small room to criticize its legal principle. Firstly, as for the effectiveness of the prior repayment for the objective judgment, the joint collateral mortgage and joint mortgage are completely based on the sameness. There is any argument point for such judgment, which is not harmonized with another theory of the court that independently understands the mutual relation between the collateral securities. Because, under our legislation for the joint mortgage composed of the plural collateral mortgage, the point, which each collateral mortgage is independently treated in the aspect of fixing the secured mortgage credit but the matter for the prior repayment shall be regarded as the joint, will be discordant. In this addition, it is the interpretation that disregards the legal principle for the collateral security existing in the joint collateral security. Secondly, the objective judgment did not mention the request itself for the partial fixing theory, which if the part among the objective real estate of the joint collateral mortgage was executed as the third party applied for the auction, the collateral mortgage was fixed on the said real estate but the collateral mortgage was not fixed on the rest one, but it decided that the original judgment was improper in the light of the purport of Clause 368 of the civil law. It seems it is the viewpoint that the allotment shall be finally made in conformity to the purport of Clause 368 of the civil law despite of the course. It means that the allotment for the subordinated mortgagee in the different time allotment procedure shall conform to that of the simultaneous allotment. There is the problem that as for the simultaneous allotment in the joint collateral mortgage, the secured credit amount can be allotted in the proportional division in proportion to the auction value of each real estate but if the partial fixing is premised in the different time allotment procedure, there may be any case that the correct allotment can not be made. Thirdly, the objective judgment decides that in case the joint mortgagee participates in the allotment procedure for the expropriation compensation against the part of the secured real estate and is allotted with the full amount corresponding to the highest amount in the scope of the prior repayment right, the prior repayment right can not be exercised in the auction procedure to exercise the mortgage for other secured real estate. It is noted that if the allotment can be received in repetition amounting to the highest amount from each conversed amount of the joint collateral mortgage objective as the joint collateral mortgagee itself does not exercise the auction, it means that any improper damage will be given to the person who acquires the mortgage in the latter sequence for the real estate, which the joint collateral mortgage in the prior sequence is established. Indeed, it is possible for the secured credit amount to be repaid in repetition corresponding to the highest amount as per the theory of the original judgment criticized by the Supreme Court. The plural collateral mortgage making the joint collateral security secures the whole of each secured credit, and it will become the problem that if the secured credit amount is filled and exceeds the highest amount, it is possible to be repaid to the highest amount from the allotment of each collateral mortgage or if the highest amount is filled, the effectiveness for the prior repayment will be lapsed. It is the question what the same credit component is, which is the establishment factor of the joint mortgage and also it means the analysis for the original judgment. In brief, looking into the above argument for the objective judgment, as for the conclusion for the outline of the judgment, it generally has the same opinion, but the Supreme Court seeks the basis in Clause 368 of the civil court and the private opinion can find such meaning in the highest amount. However, as mentioned above, there is any aspect assent in the abstract argument, which follows the interpretation theory for the net joint security of Japan. It is never the case to be passed over as the question presented above is operated of no compromise. Rather, if the Supreme Court used the approaching method to make the previous decision for the whole fixing matter, its argument can be proper without any room. The court has continuously produced the argument so far in the interpretation theory being near to the allopathy under the circumstance that the regulations of the civil law for the joint mortgage does not exist. Clearly, if the interpretation theory for the net joint mortgage of Japan is borrowed, it is necessary to bind the several mortgages from establishment to existence and the whole fixing will be also included in the concrete contents.
#공동근저당. 연대성. 부종성. 피담보채권의 확정. 채권최고액 #a blanket mortgage on roll over loan #the settlement of blanket mortgage on roll over loan #solidarity #a mortgage exists soley as security for an underlying obligation and the mortgage lives #travels and die with obligation

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/ 1987 / Practising Law Institute / Real Estate Law and Practice Course Handbook Series google schola American Law Institute / 1997 / Restatement of The Law(3rd) / Property google schola Basler Kommentar / 2003 / 2. Aufl. google schola Berner Kommentar / 1974 / Band Ⅳ, 3. Aufl google schola Boissonade / 1983 / G, Projet de code civil : pour l'empire du Japon, Ⅳ 2ed google schola

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