金融實務上 共同抵當에 대한 一考 (A study on the joint mortgages in banking business)

서지정보

· 발행기관 : 한국금융법학회
· 수록지 정보 : 금융법연구 / 10권 / 2호 / 291 ~ 322페이지
· 저자명 : 도제문

초록

Civil Act provides for joint mortgages and dividend of proceeds thereof,subrogation of mortgagee next in priority as follows. Where two or moreimmovables are mortgaged to secure one claim and the proceeds of the auctionare to be applied simultaneously to its satisfaction, the burdens in respect of theobligation shall be divided in proportion to the proceeds of the auction sale ofeach immovable.
If the proceeds of the auction sale of part of the immovables mentionedin the preceding paragraph are to be applied, the mortgagee may obtain fullsatisfaction of his claim out of the same; in such case the mortgagee next inpriority may exercise the right of the prior mortgages by subrogation to theextent of the amount which the latter would have received out of otherimmovables in accordance with the provisions of the preceding paragraph.
In relation to the joint mortgages in financial business, the majorproblem lies in the appropriate modulation among the persons concernedincluding borrowers, owners of properties secured for joint mortgages and themortgagee next in priority whose benefits are got complicated. But civil lawcan not provide apparent solution to the collision between the mortgagee next in priority and the person who gave his own property as security. But althoughtheoretical arguments exist, bankers should make transactions according to thecourt's decision. In future, when the decisions are changed, bankers should dohis job according to the changed decisions.
Except for special cases focused on social and political considerations,unexpected benefits or losses for either sides of a trade should not be allowedin financial transactions. Especially in banking business, bankers and borrowerscan avoid any accidental losses provided that they always transact in accordancewith the court's precedents.

영어초록

Civil Act provides for joint mortgages and dividend of proceeds thereof,subrogation of mortgagee next in priority as follows. Where two or moreimmovables are mortgaged to secure one claim and the proceeds of the auctionare to be applied simultaneously to its satisfaction, the burdens in respect of theobligation shall be divided in proportion to the proceeds of the auction sale ofeach immovable.
If the proceeds of the auction sale of part of the immovables mentionedin the preceding paragraph are to be applied, the mortgagee may obtain fullsatisfaction of his claim out of the same; in such case the mortgagee next inpriority may exercise the right of the prior mortgages by subrogation to theextent of the amount which the latter would have received out of otherimmovables in accordance with the provisions of the preceding paragraph.
In relation to the joint mortgages in financial business, the majorproblem lies in the appropriate modulation among the persons concernedincluding borrowers, owners of properties secured for joint mortgages and themortgagee next in priority whose benefits are got complicated. But civil lawcan not provide apparent solution to the collision between the mortgagee next in priority and the person who gave his own property as security. But althoughtheoretical arguments exist, bankers should make transactions according to thecourt's decision. In future, when the decisions are changed, bankers should dohis job according to the changed decisions.
Except for special cases focused on social and political considerations,unexpected benefits or losses for either sides of a trade should not be allowedin financial transactions. Especially in banking business, bankers and borrowerscan avoid any accidental losses provided that they always transact in accordancewith the court's precedents.

참고자료

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