용익권자를 위한 일괄경매청구권의 확대

Abstract

The existing theory and precedent are attached to civil law article 365, Blanket Auction right. As a result of it, grammatical interpretation is sticked to, and Blanket Auction right's valid scope is admitted partly unlike the purpose of legislation. This has been criticized because social and economical request on building forced removal prevention and the concerned persons' profits like a mortgagee can't be reflected. Thus the request that the scope of Blanket Auction right should be expanded has been suggested continually. It is not valid because it doesn't accord with the purpose of revision in Korea and it's not proper regulation for a mortgage and usufructuary right. As a narrow analysis on existing common theory in Korea and Blanket Auction right's scope is maintained as it is, the method for Blanket Auction right's scope expansion is required actually. The interested's statuses for building preservation are accepted in a building owner or a mortgagee's position and the conflict between a mortgage and a usufructuary right should be solved. In claim for auction, anyone, being a building owner, may have Blanket auction executing right claim which needs for total auction claim for a mortgagee and a mortgage to reject it. An occasion as this, a building owner have purchase offering right for a auctioneer and then the problems that regulate among building preservation, a mortgage and a usufructuary right will be solved reasonably. Without civil law article 365's revision, interpretation theory can't be acquired. A legislative measure is needed to identify it. But this will be solved through not a mortgage's right enforcement but reasonable right allotment to a mortgage right in a usufructuary position.