누적적 근저당에 대한 비판적 검토

Abstract

The judgements by the Supreme Court on April 9, 2020, Nr 2014Da51756, 51763 are significant in that they are first to recognize cumulative floating sum mortgage. In order to secure the same bonds arising from a single basic contract, the right to collateral security is established on several real estates, it refers to a collateral security that can be repeatedly allocated the maximum amount of bonds from each real estate. In the case that a cumulative floating sum mortgage has been formed on several real estates in order to secure the same bonds arising from a single basic contract between the parties, that is characterized by not being registered as a joint mortgage. Therefore, Article 368 of the Korea Civil Act on joint mortgagees do not apply to cumulative floating sum mortgage. I think that it is somewhat unreasonable to recognize the scope of cumulative floating sum mortgage. If the mortgage object is entirely owned by the debtor, it can be considered that there is no problem even if the cumulative floating sum mortgage is recognized. But, I think that debtor and another’s obligation should be viewed differently, In this case, I think Article 368 of the Korea Civil Act should be applied. For example, It is treated as a joint mortgage only to the extent that the amount overlaps, the amount of the two maximum bonds of real estate A owned by the debtor and real estate B owned by the another’s obligation for goods is the highest. Eventually, individual floating sum mortgages are established for the excess amount. The precedent by the Supreme Court does not require the registration of a joint mortgage as a requirement for establishment. Therefore, there is a problem that sometimes the fate is divided into joint mortgages and sometimes cumulative floating sum mortgage. It does not conform to the principle of surplus or principle of the proportion of excessive auction regulated by the Civil Execution Act.