공동근저당 목적부동산 매각에 의한 채무자의 변제와 채권자의 담보 포기 내지 순위 변경 - 대법원 2018. 7. 11. 선고 2017다292756 판결 -

Abstract

Since 2000, important Supreme Court judgments on a joint floating sum mortgage have been pouring out. Our civil code, however, has only one article (Article 357) regarding a joint mortgage, but no provision for the joint floating sum mortgage. As a result, the controls for the joint floating sum mortgage are left to the development of theories and precedents. Therefore, in understanding the joint floating sum mortgage, it is very important to know exactly the content of theories and precedents. The Supreme Court judgment(2017Da292756 on July 11. 2018), selected for review in this paper, is an extension of the Supreme Court judgments that have been made since 2000 in relation to the joint floating sum mortgage on much of its issues and arguments presented. On the other hand, the selected judgment addresses a new issue that has not been addressed by previous Supreme Court judgments: if a debtor repays a portion of a collateralized debt with money prepared by selling off his own joint collateral property, or if a creditor renounces some of his collaterals, then what effect this has on the auction procedures for property owned by the person who mortgaged his property to secure another’s debt, provided together for the purpose of the joint collateral. In this judgment review, the legal theories of the existing Supreme Court judgments regarding the joint floating sum mortgage were critically examined, and it was adressed whether the acceptance of the legal theories of such existing Supreme Court judgments by this judgment can be justified, whether the arguments and conclusions of this Supreme Court judgment on the newly raised issue are appropriate.