매각대금채권에 대한 저당권의 물상대위 - 한국과 일본에서의 논의를 소재로 하여 -

Abstract

This dissertation is a study on mortgage's subrogation of the debt of price for sale. As one of the debt's common trait, subrogation is right to object and it also means a properties of specified subrogation's effect when the value of subrogated target is materialized for some reason. Article 342 of the Korean Civil Act regulates that a pledge may also be exercised against money or other things which the pledger is entitled to receive by reason of the loss, damage or expropriation of the pledged article and the Act applies it to the mortgage. The Act deleted selling and claim for rent from subrogated target that was once admitted in the previous Act. The reason is that the subrogation cannot be exercised if it's possible to overtake against subrogated target and it is also the attitude of the precedent and common view. In contrast, when it comes to Japan, Janpanse Civil code regulates that a statutory lien may also be exercised against Things including monies that the obligor is to receive as a result of the sale, lease or loss of, or damage to, the subject matter of the statutory lien. Therefore it admits subrogation to price of selling and claim for rent, too. Considering German and Japanese cases that agreeing subrogation even when it's possible to overtake against secured property, Korean Civil Act's attitude that denying it, lacks persuasion. Furthermore, making settlement of mortgage does not mean relinquishing creditor's status and principal of law of subrogation can exist for the creditor just as acknowledging subrogation to bequest. Accordingly, subrogation's object limit is up to lawmaker's political judgement in a sense of securing security right, and the mortgage's right of value that only allows exchange value of secured property should be reconsidered. Lastly, since there is no price of selling in Korean Civil act's codes on subrogation, discussing subrogation on price of selling has it's limits. However, considering the reality of admitting only the auction as a mean of executing mortgage, if the future financial market's situations get changed, in a sense of diversifying means of executing mortgage, subrogation of price for selling through amending article 342 of the Korean Civil Act surely has its practical use.