재판상 담보공탁의 담보권 실행에 관한 소고

• 영문명: A Study concerning the Execution of Security Right in a Judicial Security Deposit
• 발행기관: 충북대학교 법학연구소
• 저자명: 김광수(Kim, Gwang Su) 김건호(Kim, Gun Ho)
• 간행물 정보: 『법학연구』第33卷 第1號, 1~29쪽, 전체 29쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2022.06.30

영문 초록

A judicial security deposit is being made for trial to guarantee the damage the other party will receive due to the litigation act or provisional disposition. The Civil Procedure Act stipulates that the security right holder has the same right as the pledgee on the security (Article 123 of the Civil Procedure Act), and this applies to the Civil Execution Act (Article 19 of the Civil Execution Act). At this time, in relation to the nature of the security right, there is an opinion that the security right holder has the right to pledge bonds on the right of the security obligor to claim the recovery of the deposit. However, this view is insufficient to protect the security right holder's rights, such as requiring a complicated procedure for the execution of the security right. Furthermore, in the regulations on the withdrawal of payment of collateral deposits (Administrative Regulation No. 952), it is rather confusing in understanding the nature of security rights as both the method of requesting direct withdrawal for deposit and seizure procedure for the execution of the pledge are recognized. The seizure procedure for the execution of the pledge shall be recognized only when the purpose cannot be achieved by the method of exercising the direct withdrawal right. But it is confused that this regulation allows all the method of requesting direct withdrawal for deposit and seizure procedure for the execution of the pledge. The reason why the provisions of our law stipulate that the depositor gave the same right as the pledgee to the security provided by the depositor in the trial security deposit means that the right to claim the collection of the deposit is established. Therefore, the security right holder, who is the trustee, has the right to claim preferential withdrawal from the deposit(direct claim right), and this right must be understood as the purpose of the security right. This interpretation is considered to be consistent with the purpose of recognizing the security right to the security right holder for the object deposited as a security deposit in court.

목차

Ⅰ. 서론

Ⅱ. 재판상 담보공탁과 피담보채권의 범위

Ⅲ. 재판상 담보공탁금에 대한 담보권의 실행

Ⅳ. 우선적 출급청구권설에 입각한 담보권의 실행절차

Ⅴ. 결론

키워드

재판상 담보공탁 담보권의 실행 우선적 출급청구권 법정질권 담보취소 judicial security deposit the right to claim recovery of the deposit statutory pledge direct claim right cancellation of the judicial security deposit