私法上 物上代位法理에 對한 統一的要件定立을 위한 試案

• 영문명: Establishing Three General Requirements of the Doctrine of Real Subrogation under Korean Private Law
• 발행기관: 한국민사법학회
• 저자명: 오영걸(Wu, Ying-Chieh)
• 간행물 정보: 『민사법학』제56호, 55~85쪽, 전체 31쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2011.12.31

영문 초록

This work tries to establish three general requirements of the doctrine of real subrogation under Korean private law. The work argues that the following three elements are needed in applying the doctrine: (1) a pre-existing legal relationship binding the defendant; (2) substitution of an asset for another; and (3) statutory ground. The doctrine of real subrogation has commonly been understood as a means used when those who have security interests want to assert their pre-existing proprietary interests over the substitutes in the hand of their defendant. However, the work proves that the doctrine is not a terrain only for those security right-holders under the current Korean private law. They are also available for those entitled to enjoy benefits arising from the devise, donatio mortis causa, and trusts. Deduced from the analyses of the mechanism of the doctrine of real subrogation used in those cases are the three aforementioned requirements. And they show us that the doctrine can potentially be used much wider than it has been, and, contrary to some trust lawyers argument, the nature of the doctrine adopted in the law of trusts is not different from that recognised in the law of security since they all share the three general requirements presented in this work.

목차

Ⅰ. 서론

Ⅱ. 민법상 물상대위법리

Ⅲ. 신탁법과 물상대위

Ⅳ. 결론

참고문헌

키워드

물상대위 구속성 대체성 법근거성 담보물권 신탁재산 유증 압류 영미법 목적재산. real subrogation pre-existing legal relationship substitution attachment statutory ground security interest trust fund devise donatio mortis causa common law system separate patrimony