다수의 부동산위에 설정된 근저당권의 법률관계 - 대법원 2006.10.27. 선고2005다14502판결의 검토를 중심으로

Legal Relation of Collateral Security Established on Lots of Real Estates - Centered on Review of Supreme Court Sentence 2005DA14502 Judgment of October 27, 2006 -

&nbsp;&nbsp;Our civil law regulates in Clause 357, which is the sole clause for the collateral mortgage, &quot;The mortgage can fix only the highest amount of the debts to be secured and establish it by retaining the fixing of the debts&quot;, but it actually does not expressively regulates the joint collateral mortgage, which is the relation between collateral security and collateral security. Namely, as any legal vacancy occurs, the legal relation of the joint collateral security is complicatedly spreaded through mixing of the legal principle of the collateral mortgage besides that of the joint mortgage. For this reason, the practical business for the auction and allotment avoids the different time allotment but prefers the simultaneous allotment. In case the different time allotment is exceptionally made, this allotment is made relying on the principle of the official service in charge. In can any problem for such allotment occurs in this respect, it will meet any complex interpretation theory. Among these, the treatment for the case, which the highest full amount was made as the preceding allotment in the different time allotment is Sentence 2005Da14502 Judgment of October 27, 2006 (hereinafter called as &quot;Objective Judgment&quot;). Looking into the course reaching the objective judgment, it was decided being centered on fixing of the secured mortgage credit in the original judgment but as the Supreme court decides that Clause 368 of the civil law is also applied in the joint collateral security as it follows the partial fixing as per the leading case of the Supreme Court that sets up the theory for the partial fixing. However, the objective judgment is proper in its conclusion but it is not so small room to criticize its legal principle.<BR>&nbsp;&nbsp;Firstly, as for the effectiveness of the prior repayment for the objective judgment, the joint collateral mortgage and joint mortgage are completely based on the sameness. There is any argument point for such judgment, which is not harmonized with another theory of the court that independently understands the mutual relation between the collateral securities. Because, under our legislation for the joint mortgage composed of the plural collateral mortgage, the point, which each collateral mortgage is independently treated in the aspect of fixing the secured mortgage credit but the matter for the prior repayment shall be regarded as the joint, will be discordant. In this addition, it is the interpretation that disregards the legal principle for the collateral security existing in the joint collateral security.<BR>&nbsp;&nbsp;Secondly, the objective judgment did not mention the request itself for the partial fixing theory, which if the part among the objective real estate of the joint collateral mortgage was executed as the third party applied for the auction, the collateral mortgage was fixed on the said real estate but the collateral mortgage was not fixed on the rest one, but it decided that the original judgment was improper in the light of the purport of Clause 368 of the civil law. It seems it is the viewpoint that the allotment shall be finally made in conformity to the purport of Clause 368 of the civil law despite of the course. It means that the allotment for the subordinated mortgagee in the different time allotment procedure shall conform to that of the simultaneous allotment. There is the problem that as for the simultaneous allotment in the joint collateral mortgage, the secured credit amount can be allotted in the proportional division in proportion to the auction value of each real estate but if the partial fixing is premised in the different time allotment procedure, there may be any case that the correct allotment can not be made.<BR>&nbsp;&nbsp;Thirdly, the objective judgment decides that in case the joint mortgagee participates in the allotment procedure for the expropriation compensation against the part of the secured real estate and is allo