민법 제367조에 대한 검토 및 개정안

Abstract

The Korean Civil Act provides the Article 319 on 「the Claim of Third Party Purchaser for Reimbursement Expenses」. In this paper, I studied many problems on this Article 367 comprehensively and organically. And based on this study, I suggested right amendment proposals as following. In the follows, The Article is the Korean Civil Act Article. 1. Review of Terms in The Article 367 It is right to revise necessary expenses to preservative expenses. And it is right to revise useful expenses to improvemental expenses. 2. Concept․Rank․Scope of Preferential Obtainment Third party purchaser takes precedence over mortgagee. Reimbursement of necessary expenses and useful expenses is done according to The Article 203 Clause 1 and Clause 2. Therefore third party purchaser can not claim ordinary necessary expenses. And in the sense of legislation, it is right to allow to claim the amount expened when useful expenses had expensed. 3. Legal Nature of Claim for Reimbursement Expenses The reimbursement-expenses by The Article 367 is not reimbursement of public utility expenses. Therefore the claim of third party purchaser for reimbursement expenses is a special claim that The Article 367 recognizes for third party purchaser. 4. Concept․Scope of Third Party Purchaser Korean judicial precedent and many legal scholars contend that the third party purchaser means the third person who has obtained the ownership or a superficies or chonsegwon on the mortgagee immovable. But I does not contend that the third party purchaser means the third person who has obtained the ownership or a superficies or chonsegwon on the mortgagee immovable. And it is very difficult that I find the third party of The Article 367. 5. Amendment Proposals on The Article 367 The Article 367 is unright and is contrary to the principle of preferentiality. So I proposed that it is reasonable to deleted The Article 367. If it is not deleted, it is right to revise The Article 367 reasonably. So I proposed the reasonable amendment of The Article 367. And I proposed the amendment of 「Act on Security of Movable and Credit Article 18」.