가압류해방공탁금의 압류 경합과 관련한 문제점

• 영문명: Issues Arising out of Attachment by Multiple Competing Creditors in the Case of Deposits Required for Release of Provisional Attachment
• 발행기관: 경희법학연구소
• 저자명: 최영노(Choi Yeong-Noh)
• 간행물 정보: 『경희법학』제42권 제3호, 367~286쪽, 전체 -80쪽
• 주제분류: 법학 > 민법
• 파일형태: PDF
• 발행일자: 2007.12.30

영문 초록

The Supreme Court has held that any person who has lent money to a debtor under provisional attachment (hereinafter Provisional Attachment Creditor ) claim his/her right to the attachment as arising out of the claim against the debtor itself. Nor can the Provisional Attachment Creditor claim validity of the attachment as arising out of his/her right to recovery of the debtor s release deposit( Deposit for Release of Provisional Attachment ). This is so even where a third party lender (hereinafter Lender ) has lent money to the provisional attachment debtor to enable the debtor to release his/her property from attachment by the provisional attachment creditor. While the reasonableness of the Court s conclusion is generally acknowledged, there remains a question as to its theoretical basis. There is a view which holds that the theoretical basis for the Lender to be unable to assert the validity of the provisional attachment against the Provisional Attachment Creditor lies in the principle of good faith. However, the principle of good faith may not be a sufficient theoretical basis. In addition, it can be assumed that the Lender expresses its intent not to assert its rights as creditor upon compulsory execution of the money involved with the Provisional Attachment Creditor, and it is therefore reasonable to argue that the distribution rights of the Lender should be restricted on the basis of such intent and the principle of good faith. Meanwhile, if a third party creditor against the provisional attachment debtor other than the Provisional Attachment Creditor and the Lender who provisionally attached recovery of the Deposit for Release of Provisional Attachment is involved, a measure to coordinate interests in distributing any proceeds among the parties is required. In this article, I suggest a solution to this problem as follows: the proceeds should be first distributed to the three creditors (Provisional Attachment Creditor, the Lender and the third party creditor) according to their proportion of credit against the debtor. Next, the Provisional Attachment Creditor absorbs the amount to be distributed to the Lender to the extent of the amount that the Provisional Attachment Creditor would have received if there had been no provisional attachment of the Lender.

목차

l. 서 론

ll. 해방공탁금의 법적 성질 등

lll. 해방공탁금 대여자가 해방공탁금 회수청구권에 대하여 한 압류의 효력과 관련한 문제점

lV. 가압류 채권자와 해방공탁금 대여자 이외의 제3자가 배당에 참가하는 경우의 배당관계

키워드

가압류 해방공탁금 공탁금회수청구권 압류경합 배당 강제집행 채권집행 provisional attachment deposit for release from provisional attachment the right to claim recovery of the deposit attachment by multiple competing creditors distribution of proceeds compulsory execution execution of claim.