부동산양도담보 설정자와 제3자이의의 소 - 최근의 일본 최고재판소 판례를 중심으로 -

Abstract

The creditor may apply for compulsory execution to real property to which mortgage is set. On the other hand, the third party who an interest in the property can use Article 48 of the civil execution law for the purpose to prevent such execution. Whether it becomes the third party or not depends on property to which mortgage is set. Because the creditor to mortgagor apply for execution if the property is a personal property, the third party is mortgagee. Oppositely because the creditor to mortgagee apply for execution if the property is a real property, the third party is mortgagor. This research deals with the problem concerning the objection of third party to execution in mortgage on real property. Especially, Japanese Law with a similar theory of un-statutory security including mortgage has had a big influence on Korean law. Recently the Japan Supreme Court delivered an important decision that judged the problem that is concerning the objection of third party to execution in mortgage on real property. Such Supreme Court case is first made a material in this research and the theory in Japanese Law on mortgage is taken up. Then the possibility of objection of third party to execution by mortgagor is treated in detail. Finally the suggestion from Japanese Law is described.