共同根抵當의 實行에 관한 硏究
(A) Study on the Execution of the Co-Fixed Collateral
공동근저당 공동저당 후순위권리자 경매;
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Mortgage is the flower of the security system. Today many of financial transactions use the mortgage, particularly the co-fixed collateral as their representative security system. This is because Korea adopts a rule that regards the lands and the buildings as the real estates separated from each other, so when a building is offered as the security co-mortgage must be held on its accompanying the land in order to guarantee the value of security, and in most cases fixed the collateral rather than the mortgage is used for the convenience of financial transactions. Although the co-fixed collateral is frequently used in the financial transactions today, the Korean Civil Law has only a provision (Article 368 of the Civil Law) with regard to the co-fixed collateral, which is insufficient to resolve the conflicts of interests among the concerned parties. Until now, if the provisions in the Korean Civil Law are insufficient, the theories and the precedent cases has been used to solve the conflicts of interests among the parties concerned in the fixed-collateral but these are also unsatisfactory. The present study is about how to solve the problems in executing the co-fixed collateral, particularly the problem of adjusting interests among the junior right holders centering on the collision between the subrogation and the junior mortgagees. As for the collision between the subrogation and the junior mortgagees in executing the co-fixed collateral, there are the theories such as the subrogation-first, the junior mortgagee subrogation-first, and early the registration-first. In Korea, the subrogation-first theory is supported by the majority as well as the precedent cases. However, it is necessary to take notice of early the registration-first theory. The theory takes the position of subrogation-first in the normal situations but the position of junior mortgagee-first when the mortgage of junior mortgagees collides with the subrogation due to a reason unexpected when the mortgage was settled such as the assignment of the ownership to a third party after the mortgage of junior mortgagees had been settled. That is, it insists that the priority must be set according to the time when the legal status occurs. This theory is valid in the interest adjustment and the researcher personally supports it. There has not been sufficient research on the interest adjustment among the parties interested in executing the co-fixed collateral, so the matter needs to be studied thoroughly in the future. Japan revised its Civil Law in 1971, stipulating provisions about the constitution of the co-fixed collateral, the acknowledgement of the cumulative fixed-collateral, etc. This study concludes that Korea also needs to supplement and revise the Article 368 of the Korean Civil Law concerning parts that can be adjusted according to the precedent cases and the theories in order to reduce the unnecessary controversies over the execution of co-fixed collateral.