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Real Subrogation 원문보기
物上代位

  • 저자

    김선근

  • 학위수여기관

    慶北大學校 大學院

  • 학위구분

    국내석사

  • 학과

    법학과 민사법전공

  • 지도교수

  • 발행년도

    2004

  • 총페이지

    iii, 94p.

  • 키워드

    물상대위권 민법 주제어기입;

  • 언어

    kor

  • 원문 URL

    http://www.riss.kr/link?id=T10045618&outLink=K  

  • 초록

    The creation of real subrogation and the manner of exercising real subrogation have been examined separately above. Special efforts were made to logically interpret legislative deficiencies in regard to attachment in the provisory clause, such as the purpose, the executor, the termination, and the specific content etc., of such attachment. In addition, the order of preference as an effect of real subrogation was examined. In summary, the Real Subrogation Intrinsic Nature theory explaining the reason for acknowledging real subrogation under current law and the various theories and judgments concerning the necessity of attachment have a reasonably, but not inevitably, logical connection in light of issues of significance such as the executor of attachment, the time of attachment, and preference with respect to other creditors. Concerning the purpose, or necessity, of attachment, a Japanese Supreme Court judgment regarded the main clause of Civil Law Article 342 and the provisory clause of the same article as having different legislative purposes, with the former protecting the real subrogation right holder and the latter protecting the subrogation debtor. Having done so, it leaned toward the Protection of the Subrogation Debtor theory by examining the historical legislation process of Article 342. Even if it is accurate that the historical reason for attachment was to protect the subrogation debtor from the risk of repetitive performance, there is no need to limit the reason for attachment to that alone. By guaranteeing specificity, it prevents undue complication of legal relations and also protects the transferee or assignee of the claim. Therefore, the Protection of the Subrogation Debtor theory is no more than an aspect of the Specificity Preservation theory viewed from the position of the subrogation debtor. Such being the case, the institution of real subrogation was acknowledged in order to protect the real subrogation right holder in relation to the possessor, also the security right creator, and the subrogation debtor, the transferee of the claim, and the assignee of the claim. The method of exercising real subrogation is limited to attachment in order to protect the other parties concerned. Therefore, in interpreting the institution of real subrogation in general, the above should be kept in mind over and above the protection of the real subrogation right holder. There exists a view pointing out the limitations involved in protecting the security right holder relying on interpretation alone, and offering a legislative solution. Interpretation of the current real subrogation clause makes it possible for the subrogation debtor to perform his obligation towards the security right creator while the security right holder is unaware of the creation of the real subrogation right or before he exercises real subrogation. In that case, under current law, all views unanimously agree that it would no longer be possible to exercise real subrogation, and there is a risk of collusion between the security right creator and his debtor in order to falsely assert advance performance. The position of German Civil Law, which provides that the subrogation debtor inform the security right holder of the creation of the real subrogation right and that the debtor perform his obligation in regard to the security right creator only if there is no objection on the part of the security right holder within one month of information should be taken note of as a legislative solution.


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