不動産執行上 多數債權者의 配當要求에 관한 硏究 = (A) study on claiming an apportionment by obligees in the execution of real property

다국어 초록 (Multilingual Abstract)

In case of civil affairs, if the right and/or the duty provided in civil law and commercial law take concrete shape through an abstract entity or the fulfillment between the parties concerned, the parties's object will attain without intervention of a court.
But it is natural that one is in a dispute with others, then to settle the dispute must call for a civil suit. And a civil suit means that, in troubles between individuals, a court establish the rights and/or the duties of the parties, and if anyone don't discharge oneself of his duty, satisfy other's rights with compulsorily practicing the duty.
The aim and end of realizing cash on claims is in an apportionment, which is the way of calling in a claim by law enforcement authorities, the ultimate cause for compulsory execution and the conclusion of the execution.
As previously stated, there is equalitarianism, a priority principle, and a group-priority principle in the apportionment, when an obligee claim one's apportionment to exercise his rights.
In view of equalitarianism, except for the prescribed priority in civil affairs related law, creditors is dealt fairly with, both attachment-creditors and obligees participate in a specified step of execution proceedings can be share out the assessed price of the seized property in proportion to the amount of a claim.
This says that the profit of obligors can be protected because it goes against a principle of equality to give priority to an obligee attached before others and it isn't necessary for obligees to execute rapidly on the ground of being left room for claim an apportionment, and there is no the legal proceedings because attachment-creditors proceed the legal action with due regard to others's claim on apportionment.
At a glance it seems that equalitarianism ensure the protection of obligors, the equality in obligees, and the quickness of the legal proceedings, but this is decided in according with the way of understanding an ideal inferred by compulsory execution.
The equality in obligees implies true justice, which is the equal division of the amount of a claim and giving priority to one made more efforts to claim a right.
On the contrary, it is unjust that the profit from the attachment should be shared with one neglected to the claim and late participate in.
And what is leaved room for claiming an apportionment by others possibly take place the case that attachment-creditors can't be reimbursed on account of their the claim, moreover in consideration of this the attachment is excessive and a number of claimers of the apportionment can take part in auction proceedings because of the possibility of the claim unlimitedly.
Therefore the proceedings is more delayed and complicated.
Under a priority principle, since the extent of attachment is decided in accordance with the amount of a claim and the cost of the execution, an obligor does not go bankrupt, because the claim of the apportionment is not acceptable, the proceedings will be simple, and the execution will be quick and clear.
Our country had adopted extreme equalitarianism in establishing the Civil Proceedings Act in April 4. 1960, that is to say, as in contemporary japanese the Act, even though obligee dose not have an original text with the right of execution, he can claim an apportionment and be shared out equally.
Thenceforth the obligee is limited to the extent of claiming an apportionment on account of a special law to dealing with a civil dispute by means of summary procedures.
That is modified and absorbed in the amendment in January 13. 1990.
Also it would be a shift equalitarianism to a priority principle to strengthen the protection of the asking for prior reimbursement and enlarge the extent gradually.
And in the amendment, the proposition of a legislation for a group-priority principle had eliminated in the deliberation of the National Assembly, but only the attempt is momentous.
It is inevitably difficult to be suddenly turned from the deeply rooted equalitarianism since the foundation of a country to a priority principle. but as above stated, since a priority principle is even more proper, it would not be adhered to equalitarianism.
Therefore it must be legislate for a group-priority principle relaxed some a priority principle, the legislator must study to shift to a priority principle.

목차 (Table of Contents)

• 目次 = ⅰ
• Ⅰ. 序論 = 1
• 1. 硏究의 目的 = 1
• 2. 硏究의 方法 및 範圍 = 3
• (1) 硏究의 方法 = 3
• (2) 硏究의 範圍 = 4
• Ⅱ. 多數債權者의 執行法上 地位에 관한 立法主義 = 6
• 1. 多數債權者의 競合과 그 問題點 = 6
• 2. 優先主義 = 7
• (1) 意義 = 7
• (2) 論據와 批刻 = 9
• (3) 長短點 = 11
• 3. 平等主義 = 13
• (1) 意義 = 13
• (2) 論據와 批判 = 15
• (3) 長短點 = 16
• 4. 集團優先主義 = 19
• 5. 各 法制와 破産制度의 關係 = 22
• Ⅲ. 우리 나라에서의 配當要求制度 = 23
• 1. 配當制度의 意義 = 24
• 2. 配當要求節次의 槪觀 = 25
• (1) 不動産執行上 一般的 配當要求節次 = 25
• (2) 配當節次開始 = 26
• 3. 配當要求의 始期와 終期 = 28
• (1) 始期 = 28
• (2) 終期 = 29
• 4. 配當要求할 수 있는 債權者 = 32
• (1) 執行力 있는 正本을 가진 債權者 = 32
• (a) 民法, 商法, 기타 法律에 의하여 優先辨濟權이 있는 債權者 = 33
• (3) 競賣申請의 登記 後에 假押留를 한 債權者 = 34
• (4) 配當要求權과 관련한 問題點 = 35
• Ⅳ. 多數債權者의 配當의 優先順位 = 38
• 1. 優先債權과 配當順位 = 38
• (1) 優先債權 = 39
• (2) 優先債權 相互間의 配當順位 = 51
• (3) 實體法的 要因으로 인한 配當의 循環關係 = 54
• (4) 優先債權의 配當順位가 配當制度에서 가지는 意味 = 56
• 2. 押留 · 假押留의 相對的 效力에 의한 配當順位 = 56
• (1) 押留 · 假押留의 相對的 效力에 관한 學說 = 56
• (2) 각 경우의 문제점 = 58
• Ⅴ. 우리나라 立法主義의 方向 = 60
• 1. 우리나라의 平等主義의 변화모습 = 60
• (1) 配當要求債權者의 範圍 制限 = 60
• (2) 押留의 效力認定 여부가 미친 影響 = 61
• (3) 優先辨濟請求權의 强化 = 65
• 2. 1990년 集團優先主義의 試圖와 優先主義로의 接近方法 = 69
• Ⅵ. 結論 = 72
• 參考文獻 = 75
• Abstract = 78