근질권의 피담보채권의 확정시기 -대법원 2023. 7. 27. 선고 2022다242571 판결의 검토-

Abstract

In the Supreme Court ruling 2022da242571 issued on July 27, 2023, the issue was the timing of when a secured claim on pledge without a fixed amount (geun-jilgwon) becomes fixed. That is, is a secured claim determined when the pledgee became aware of the commencement of compulsory execution, or when the sale price is fully paid? Regarding this issue, the Supreme Court decision 2022da242571 issued on July 27, 2023, upheld the ruling of the original court, which ruled that a secured claim is determined when the person who wins the bid fully pays the bid amount. The court dismissed the plaintiff’s appeal that the secured claim is fixed when the pledgee becomes aware of the commencement of compulsory execution. What should be considered in order to review the validity of the Supreme Court decision 2022da242571 issued on July 27, 2023 regarding the issue of this case is that there are no general statutory provisions regarding the grounds and the timing of the determination of a secured claim of mortgage without a fixed sum (geun-jeodang’gwon), and the same applies to pledge without a fixed sum, too. Therefore, the current situation of the jurisprudence in Korea is that the grounds and the timing of the determining a secured claim are left to the interpretations and theories. In such a situation, it is necessary to categorize the positions of existing Supreme Court precedents on the timing of the determination of secured claims and to understand what position the existing Supreme Court precedents took in each type. Based on this premise, it is necessary to examine whether a secured claim on pledge without a fixed sum can be categorized as in the case of mortgage without a fixed sum, that is, whether there is a difference in the timing of the determination of the secured claim on pledge and mortgage without a fixed sum. In this paper, the following research was conducted as basic research to verify the validity of the Supreme Courts ruling 2022da242571 on July 27, 2023. First, after introducing the academic theories on the determination of a secured claim on mortgage, I reviewed the previous Supreme Court precedents on the timing of the determination of a secured claim. Here, in order to understand existing Supreme Court precedents more systematically, I attempted to classify existing Supreme Court precedents into different types. Second, I discussed the academic theories on the fixation of a secured claim on pledge without a fixed sum and reviewed the existing Supreme Court precedents on the timing of fixation of secured claims. Here, too, an attempt was made to categorize existing Supreme Court decisions for more systematic understanding. Third, if a mortgagee directly petitioned for an auction to enforce the mortgage, the secured claim is determined at the time of the petition for auction, that is, the secured claim is determined by the intent of the party. On the other hand, if an auction is initiated by a third party against real property, which is the underlying asset of mortgage, the mortgage without a fixed sum gets extinguished through the process regardless of the intention of the parties. Therefore, an issue may arise as to when a secured claim would be fixed, and I examined the positions of the academic theories and precedents on it. Afterwards, based on the above basic research, I reviewed the validity of the Supreme Courts ruling 2022da242571 on July 27, 2023 and presented my view on it. In the current situation in Korea where there are no statutory provisions and little discussion on the time of fixation of a secured claim on pledge, the Supreme Court decision 2022da242571 of July 27, 2023, is significant in that it calls attention to a need for such discussions. It is hoped that this decision will result in in-depth discussions by practitioners and at academic institutions on various issues regarding the timing of fixation of secured claims of pledge, as well as the development of court decisions.