이시배당에 있어서 선순위 공동근저당권자의 우선변제권 범위

Abstract

A recent en banc decision of the Supreme Court of Korea on the extent to which a joint collateral mortgagee can exercise his preferential right of satisfaction for the remaining jointly mortgaged immovables in case the mortgagee obtains satisfaction of part of his mortgage-secured claim in preference to other right holders from the realization price from an auction of some jointly mortgaged immovables requested by a third party states that ① regardless of whether the mortgage-secured claim is determined or not, ② the amount is limited to the remaining maximum pledge amount after deducting the preferentially satisfied amount of his claim from the initial maximum pledge amount, and ➂these legal principles apply also to the cases in which the mortgage-secured claim in excess of the maximum pledge amount is not the principal but the interest or loss incurred by delay (2013Da16992 dated Dec. 21, 2017). The Supreme Court noted, as a primary reason of the judgment, that it is consistent with the intent of Civil Act Art. 368 to interpret that the joint collateral mortgage should not receive dividends repeatedly from each of the realization prices of the immovables up to the maximum pledge amount (so-called "cumulative satisfaction") for the cases of simultaneous dividend payout as well non-simultaneous dividend payout. The conclusion of the above judgment is reasonable in that it can promote equity with persons concerned, including persons who pledged their property to secure another's obligation and subordinated creditors, who trusted that the right to a joint collateral mortgage will be exercised within the extent of the maximum pledge amount . However, in the process of reaching such conclusion, the theory building therein to the effect that "① regardless of whether the mortgage-secured claim is determined or not" and "② the amount is limited to the remaining maximum pledge amount after deducting the preferentially satisfied amount of his claim from the initial maximum pledge amount" do not correspond to the intent of Civil Act Art. 368 considering the origin of the legislation of the provision. This matter deserves another look from the perspective of the application of Civil Act Art. 368(2) and the registration system. If the nature of joint collateral mortgages and the above decision were to follow the legislative origin of Civil Act Art. 368 on joint mortgage, which has been noted as a major ground for the said decision, it would be reasonable to reach a conclusion different from the above judgment that once the mortgage-secured claim of the joint collateral mortgagee is determined for some jointly mortgaged objects, the mortgage-secured claim for the remaining immovables is determined as well (so-called "concurrent determination theory"). In particular, the Japanese and Taiwanese Civil Acts, which served as the matrix of Civil Act Art. 368, have been amended to apply the provision similar to the effect of Korea's Civil Act Art. 368 on the premise that mortgage-secured claim concerning the remaining immovables is determined. However, even based on the concurrent determination theory, if the sum of the satisfactions received from the procedures, such as a preceding auction, and the interest for arrears incurred from the remaining original claim after the realization process through a preceding auction exceeds the maximum pledge amount, the ajoint collateral mortgagee would end up receiving the amount of satisfaction higher than the maximum pledge amount, infringing the fairness with any persons concerned. This problem, however, may be addressed when we accept the interpretation that only the interest for arrears incurred within one year from the determination of the mortgage will be secured within the scope of the maximum pledge amount.