혼동으로 소멸하는 질권의 효력 및 세르비아나 소권과 기판사항의 항변 －D.44.2.30.1 Paulus 14 Quaestionum의 釋義－

Abstract

The text of an exegesis of Digest 44.2.30.1. has issues of substantial laws and procedural laws at the same time. What happens in Roman law when a creditor pigneraticius acquires owenership of the thing pledged to him without receiving payment from debtor? Whether or not the right of pledge is extinguished as a consequence of the fact that the creditor obtained ownership is a difficult question. In this exegesis Paul concluded that the pledge can not continue when creditor was made owner, but as there had not been satisfaction, a creditor can persuit the thing. Paul refused to accept the unjust consequence of applying the merger-principle mechanically. The position of Paul is adapted not only in BGB, but also in Korean Civil Code. If the suit concerned the ownership of the piece of land and if the judgement had been pronounced in favour of the plaintiff, the man who was defeated in the first lawsuit would be opposed by exceptio rei iudicatae. But if the possessor, who had lost the possession, claimed the piece of land from the same person who did not win in the first suit, the exceptio would not be applicable against him. In contrast to a suit on ownership, in a suit between two mortgage creditors the representations of the parties don’t exclude each other and judgement that the plaintiff is a pledge creditor does not exclude the possibility that the defendant also mortgage creditor. Even though a pignus creditor who had acquired owenership was defeated in the first Actio Serviana law suit, he may institute Actio Serviana without having to fear of exceptio rei judicatae raised from oppernent who has inferior pledge of pignus. At the end of the text Paul went back to the point of the procedural approach of the exceptio rei iudicatae and in a typically pragmatical way he came to a just result.