부동산금융으로서의 이행인수 - 대법원 2002. 5. 10. 선고 2000다18578판결을 중심으로 -

As a method of real estate financing, the buyer may borrow funds by providing security interest on the real estate to be acquired. Furthermore, if the seller has already borrowed money by establishing certain security interest over the real estate subject to the sale, the buyer may assume the seller's obligation under the loan as part of the payment of the purchase price. In this situation, the interests of relevant parties may vary: the buyer wishes to assume the obligation so that she does not have to fund the purchase price through other channel; the seller wishes to get out of the obligation under the loan when she sells the real estate; and the creditor wishes not to jeopardize her interests by change of debtor even if she holds the same security interests. The Supreme Court of Korea, through a series of decisions including the "2000Da18578" Decision, has established that, (a) the true change of debtor occurs only with the consent of the creditor; (b) without the creditor's consent, it is either (A) both the seller and the buyer are jointly liable for the loan, or (B) the seller is still the debtor under the loan, while the buyer has obligation towards the seller to perform the obligation under the loan on behalf of the seller. In case of a project of real estate development (with funding through Project Financing), the treatment of existing loans secured by the real estate is crucial. In this regard, the rules made by the Supreme Court should be re-visited.