共同抵當代位에서의 利益調節 法理

Abstract

Joint mortgage distributes risk and facilitates easy execution of credit by summing up the security value of individual mortgage object and securing credit reiteratedly. Thus joint mortgagee has a guaranteed freedom of execution and selection, while from the security provider's perspective, excessive restraint in the value of collateral may appear in a form of joint mortgage. Accordingly, by setting subordinated mortgage, sufficient use of surplus of collateral value is pursued. However, the collateral provider may be a debtor or surety (a person who has pledged his/her property to secure another's obligation) or a third acquirer succeeding him or her and joint mortgagees include the joint mortgagee and subordinated mortgagees and their various interest may be contradictory, so it is necessary to properly reconcile them. In case where part of joint mortgage object is executed, there is a person who has pledged his/her property to secure another's obligation or third acquirer, so subrogation of the subordinated mortgagee and that of payer are conflicted, then it will be principally reasonable that the subrogation of subordinated mortgagee pursuant to Article 369, Paragraph 2 is prevailing. Its ground is that simultaneous dividend and time-different dividend can be handled in balance by prevailing the subrogation of subordinated mortgage in order to sufficiently keep the surplus of collateral value of the real property owned by a debtor or a person who has pledged his/her property to secure another's obligation and there is no need to go through the same logical detour as the theory of borrowing subrogationIn mortgage, it is natural in itself that the content of its legal subrogation can not be changed depending on whether its owner is the debtor or a person who has pledged his/her property to secure another's obligation, and it is unfair that the person who has pledged his/her property to secure another's obligation is exempted from any contribution he or she should have paid in case of simultaneous dividend for the reason a subordinated mortgage was set in the real property owned by he debtor, joint mortgage objectLikewise, the subrogation of subordinated mortgagee should be preceded in principle at both simultaneous and time different dividend of joint mortgage, but even when a person becomes a person who has pledged his/her property to secure another's obligation or a third acquirer with joint mortgage to the joint mortgage object before a subordinate mortgage is created, if the subrogation of subordinated mortgage is preferred, then it will end up an illegal result to deprive the person who has pledged his/her property to secure another's obligation or the third acquirer of the subrogation of payer due to accidental circumstance occurring after his or her legal act, so only for this case, the subrogation of payer will have to be prevalent. Our case law is in the position of accepting the subrogation of subordinated parties in time different dividend pursuant to Article 368, Paragraph 2, the Civil Law only in case of he joint mortgage object being in possession of debtor, so prevailing th subrogation of payer in case of part of joint mortgage object being in possession of applying that to the case of simultaneous dividend that it eliminates the application of Article 565, Paragraph 1, the Civil Law. However, it is reasonable to firmly the subrogation of subordinated mortgagee from the beginning rather than to borrow weak-jurisprudent grounded theory of subrogation to protect the subordinated mortgagee in the process of the person who has pledged his/her property to secure another's obligation in time different dividend and even in simultaneous dividend, it is necessary to rationally control interests of parties by following the principle of proportionate dividend pursuant to Article 368, Paragraph 1, the Civil Law.