제3취득자의 변제에 관한 민법 제364조의 검토 및 개정안

A Study and Amendment Proposals on the Korean Civil Act Article 364

On the problems of Korean Civil Act Article 364, I presented my private opinion, after a critical review on theories and Korean Supreme Court’s case. And I suggested amendment proposals on Korean Civil Act Article 364 based on this my own opinion. 1. Study on “Mortgaged Immovable”and “Claim Secured by the Immovable” Is “claim secured by mortgaged immovable” of Korean Civil Act Article 364 the same as “claim secured by mortgage” of Korean Civil Act Article? The majority opinion denies, but discusses on a positive basis in other page. I affirm. 2. Study on Limit of Third Party Purchaserer in Korean Civil Act 364 ① Can ｢the third person who has obtained the ownership or superficies or chonsegwon on property mortgaged after decision on the commencement of auction｣ pay as third party purchaser of Korean Civil Act Article 364? Korean Supreme Court’s case is affirmative. I agree too, before decision of permission of successful bid. ② Is third party purchaser only third person who is presented in Korean Civil Act Article 364? In my opinion, it is various according to a concrete cases. 3. Relations with “Payment by Third Person” in Korean Civil Act Article 469 ① Is there a difference between this two in the scope and period of claim that should be payed? In my opinion, there is no difference. ② Can the parties(namely, creditor and debtor) refuse? In my opinion, they can. 4. Study on “Making a Claim for the extinction of Mortgage” ① Is “make a claim for the extinction of the mortgage” meaningless? Theories run counter to each other. In my opinion, it is meaningless. ② In the theories that “make a claim for the extinction of the mortgage” is meaning, There are problems in the nature of claim for the extinction of the mortgage and the effect of claim for the extinction. I studied these problems critically in this paper. 5. Amendment Proposals on Korean Civil Act 364 I suggested 3 amendment proposals on Korean Civil Act Article 364. Namely, amendment proposal that Korean Civil Act Article 364 have been eliminated, amendment proposal changing and adopting Japanese Civil Act Article 378․379 And I suggested third amendment proposal based on interpretation of claim secured by mortgaged immovable.