공동근저당의 이시배당에서 공동근저당권자의 우선변제권의 범위 - 대법원 2017. 12. 21. 선고 2013다16992 전원합의체 판결

Abstract

In the case where a holder of joint collateral security exercises by oneself, one’s right to collateral security or has received on a portion of the secured claim ahead of other holder the distribution from the proceeds of auction, acceptance, rehabilitation, or other procedures initiated by others on a portion of the object realty of the joint collateral, the question arises whether the same person as a holder of the joint collateral security can exercise one’s preference again over the rest of the secured claim within the scope of the initial amount of peremptory notice in the auction or other proceedings on the rest of the object realty of the joint collateral security. Especially in the case where a portion of the object realty of the joint collateral security is owned by the surety, or the object realty in the ex post auction has subordinated mortgage, the status of the surety or the subordinate mortgagee may alter as per the scope of the preference of the joint collateral security holder in the ex post auction. Therefore, the scope of preference the joint collateral security holder can exercise in the ex post auction after having been awarded the preferential payment on a portion of secured claim in the ex ante auction is a matter of grave importance in the interest of the joint collateral security holder, surety, subordinate mortgagee, and other creditors. The supreme court had not had a consistent position on the scope of preference the joint collateral security holder can exercise on the rest of the object realty of the joint collateral in the asynchronous distribution where the interests of multiple parties conflict. However, this particular ruling unified the position of the supreme court by judging that the scope is limited to the remaining amount of the peremptory notice after deducing the already awarded preferential payment from the initial amount of the peremptory notice, regardless of the fixing of the secured claim of the collateral security. The Civil Code Article 368 applies to the joint collateral security. In the case of asynchronous distribution, as in the case of synchronous distribution, the joint collateral security holder not being distributed repeatedly on each object realty to the amount of peremptory notice is in accordance with the intent of the Civil Code Article 368 that coordinates the interests of joint collateral security holders, owners of each collateral, holders of subordinate rights, and other relevant parties. In light of these and the basic position of the ruling that protects the expected benefit of the surety who has provided the collateral on the realty in the expectation of the collateral capacity over the debtor-owned realty as well as the expected benefit of subordinated mortgagee on the surety-owned realty, I think the ruling is reasonable. In addition, in view of the point that this ruling will be applied equally to the surety and/or cases where the object realty in the ex post auction does not have subordinate mortgage, I think this ruling is meaningful.