누적적 근저당권과 공동근저당권의 구분에 따른 후순위저당권자의 대위권 = Subrogation Rights of Junior Mortgagees based on the Distinction between Cumulative Mortgages and Joint Mortgages

다국어 초록 (Multilingual Abstract)

Recently, the main theoretical issues of cumulative mortgages, the new type of transaction practice, have focused on the applicability of Article 368 of Korean Civil law concerning the distribution of proceeds from joint mortgages and the subrogation rights of junior mortgagees. It presents interpretive arguments on the relationship between joint mortgages and cumulative mortgages, the applicability of Article 368 to cumulative mortgages, and legislative arguments concerning the formal distinction between joint mortgages and cumulative mortgages.
Interpretative theories on cumulative mortgages distinguish them from joint mortgages by collateral agreements: joint agreements denote narrow-sense joint mortgages, while cumulative agreements plus narrow joint mortgages form broad-sense joint mortgages. Article 368's analogical application is affirmed for paragraph 1. For paragraph 2, it applies when all collateral is debtor-owned (no surety conflict, allowing junior subrogation) but is denied when conflicting with the third-party hypothecator's subrogation right prioritizing cumulative mortgagee distribution from surety property.
Regarding the legislative approach to cumulative mortgages, similar to the Japanese Civil Code's legislative method, Article 368 is excluded from application when multiple mortgages securing the same debt are established on different properties without registration of a joint mortgage relationship. This approach formally distinguishes joint mortgages from cumulative mortgages and simplifies and clarifies the legal relationships among the collateral provider, junior mortgagee, and owner of the collateral.