저당권의 운용과 집행에 관한 민법개정안 검토

Abstract

In 2009, a mortgage and right to collateral security reform bill was put forward by 5th Subcommitee of the Civil Law Reform Committee under the Ministry of Justice. The Real Estate Registration Act, throughly amended, makes it possible to implement payment by subrogation registration. With respect to payment by sybrogation, there are competing theories whether the secured mortgage guarantor, the guarantor, or the third acquisitor takes precedence, but the amendment Article 368 of the Civil Law is not included in the current reform bill. I think that Article 368 of the Civil Law should also be amended once the subrogee registration system is implemented. As for the amendment of Article 368, it is deemed valid to amend its first and second clauses in order that the former will stipulate that “in case a mortgage is created on several pieces of real estate using the same claims as a security, the simultaneous apportionment of the proceeds from the said real estate sale should be made with the claims divided in proportion to the sale proceeds of each piece of real estate,” and the latter will stipulate that “in case the sale proceeds from part of the mortgaged real estate mentioned in the first clauses is subject to sequential appointment, the mortgagee should be paid the entire claims out of the proceeds from the said real estate sale.”It is also deemed valid to amend the third clause of the same article to “in case the mortgaged real estate to be sold is in possession of the debtor at the time of sequential apportionment, the subsequent mortgagee should not exercise subrogation rights on the portion of the secured mortgage guarantor’s mortgaged real estate that has yet to be sold”; the fourth clause of the same article to “in case the mortgaged real estate to be sold is in possession of the secured mortgage guarantor at the time of sequential apportionment, the secured mortgage guarantor shall exercise subrogation rights in lieu of the creditor on the portion of the debtor’s mortgaged real estate that has yet to be sold, and at this point the subsequent mortgagee shall have priority over the secured mortgage guarantor in exercising subrogation rights in lieu of the creditor on the portion of the debtor’s mortgaged real estate that has yet to be sold”; the fifth clause of the same article to “in case the mortgaged real estate to be sold is in possession of the secured mortgage guarantor at the time of sequential apportionment, the said secured mortgaged guarantor shall exercise subrogation rights in lieu of the creditor on the portion of other secured mortgage guarantor’s mortgaged real estate that has yet to be sold, and at this point the subsequent mortgagee shall have priority over the secured mortgage guarantor in exercising subrogation rights in lieu of the creditor on the portion of other secured mortgage guarantor’s mortgaged real estate that has yet to be sold. In this case the subrogation rights shall be exercised in lieu of the creditor within the limit of the amount to be repaid out of the proceeds from the sale of other real estate”; and the sixth clause of the same clause to “in pursuance of Item 1 of Clause 2 of Article 482, the secured mortgage guarantor and the guarantor, who have paid the debt by subrogation, shall exercise subrogation rights on an equal footing in lieu of the creditor on the mortgage of the real estate in possession of the debtor.”