경매절차진행시 저당권이 변제로 소멸된 경우의 처리

• 영문명: Discharging a secured debt by payment in a auction proceeding
• 발행기관: 한국민사법학회
• 저자명: 김상수(Kim, Sang-Soo)
• 간행물 정보: 『민사법학』제24호, 343~361쪽, 전체 19쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2003.09.30

영문 초록

If a secured debt is discharged by payment while a auction proceeding by application of mortgagee is pending (or while a compulsory auction proceeding to the real estate which a mortgage is settled is pending). what kind of impact does such payment (including payment by a debtor and payment by a third person, who becomes get a right to use the estate which is settled after the settling of a mortgage) have on the auction proceeding? First of all, when the mortgage of high priority only is discharged, a dealing with right to use the estate which is settled after the settling of the mortgage, is important. Second, it is also important to check when all of the mortgages are discharged. The interpretation of the Supreme Court in relation to the first situation is inappropriate. With taking into account mortgagee s benefits resulting from expectation and trust to the auction, the payment do not affect the auction proceeding, unless all of the mortgages are not discharged. In relztion to the second situation, especially the time of discharge of the debt, the court thinks that the auction proceeding is invalid when the discharge occurred before the commencement of auction even after the auction price is paid. Thus, the buyer may not get the estate. However I object to that interpretation. Because such interpretation prejudices to the reliability of the auction proceeding and also confronts to the basic principle of civil execution proceedings to prompt proceeding and guarantee of participating of parties and the concerned people in the proceeding with installing appeal process.

목차

Ⅰ. 서-문제의 제기

Ⅱ. 판례의 입장

Ⅲ. 새로운 해석의 필요성

Ⅳ. 결어

키워드

저당권 민사집행 면제 매각허가결정 임대차 mortgage civil execution payment order to permit to sale a secured estate lease