유동집합동산양도담보에 있어서의 물상대위

Abstract

Korean Civil code Article 342 admits the subrogation on pledge, applying it to the pledge of rights and the mortgage. But there remains a question whether the subrogation on the transfer movables security, particularly, the current collective movable property transfer mortgage is accepted because there is no mention about the transfer movables security. In the case of the current collective movable property transfer mortgage, the intention of parties of settlement of right to property transferred for security and the intrinsic function of right to property transferred for security should be accounted in judging whether subrogation is accepted or not. Too much emphasis should not be put on the legal form called the owner’s position of a person who holds a right to property transferred for security. This view means that the subrogation on the current collective movable property transfer mortgage should be admitted. The constitutional part of the current collective things, that is, the collateral object on the current collective movable property transfer mortgage is supposed to be changeable. In addition, the right to property transferred for security can’t be exercised as far as the constitutional part is changeable. Thus, fixation of collateral object should precede exertion of the subrogation right. However, if a person who creates a security right continues to do the ordinary course of business in accordance with the custom of the current collective movable property transfer mortgage, exertion of the subrogation right should not be admitted as far as special circumstances like agreement admitting it at the stage before suspension of business don’t happen despite the reason of fixation. The effectiveness of special contract which enables exertion of the subrogation right while a person who holds a right to property transferred for security or a debtor does business should be interpreted as restrictedly as possible. It’s because exertion of subrogation right can block the circulation of business and seriously drive a debtor into suspension of business. Therefore, other items like money should be seized before payment or delivery in order to exercise the subrogation right. But in this case, a person who holds a right to the current collective movable property transfer mortgage need not seize them personally. It’s because the subrogation right is admitted in the case that the third creditor seized them previously. Act on Security of movables and claim et. extends the scope of subrogation up to disposal or lease of the collateral object unlike existing civil law. Movable property is easy to dispose. Once disposed, it is actually hard to overtake collateral object and execute a security right. A transferee can acquire the ownership without the burden of a security right through disposal or bona fide acquisition during the ordinary course of business. All these things considered, Act on Security of movables and claim et. extending recognition range of subrogation to disposal or lease of collateral object is desirable in terms of the protection of a mortgagee of movables registration.