저당권자의 물상대위

Abstract

It becomes a problem whether who will seize somebody's property until when based on the rule that the third debtor should be seized before payment or delivery to a debtor for a mortgagee to exercise the surrogation. Regarding this, some theories are asserted such as specificity maintenance, priority preservation, or protecting the third debtor. The theory of protecting the third debtor is regarded appropriate in that the seizure is to save the third debtor's risk of double reimbursement according to the history of legislation. Therefore, the seizure must be done by the mortgagee and when subrogated target credit devolves on or an assignment order is decided, the third debtor can seize somebody's property before being actually paid or delivered to the acquisition by transfer or all creditors. After being actually paid by the third debtor, the mortgagee can sue for restitution of unjust enrichment if the person who gets paid is a debtor, the person who has pledged his/her property to secure another's obligation, or the third party purchaser or all creditors. However, it seems invalid when the creditor makes a dividend from the compulsory execution proceedings.