저당권자의 일괄경매청구권에 관한 몇 가지 문제

This paper attempts to critically examine the contents of Article 365 (Claim for Auction of Building on Mortgaged Land) of the Korean Civil Act, beginning with exploring key issues that may arise in regards to the interpretative theory on the blanket auction claim right. The paper then reviews whether to adhere to conventional views and precedents on the matter, and goes on to explore ways to approach such traditional views and opinions (if accepted) from a new perspective. The main conclusions of the paper can be summarized as follows: (i) A right to claim for blanket auction is where a building can be sold by auction together with the land where the building was constructed after a mortgage was created over it, for the benefit of both the mortgagee and the building owner, and its applicability is different from the statutory superficies. (ii) The view that a mortgagee needs to construct and own a building in order for the aforesaid Article 365 to apply is not acceptable. Rather, it would be suffice to construct the building after creation of a mortgage within the mortgaged land owner’s scope of use and benefit. (iii) There are sufficient grounds to regard the right to claim for blanket auction as an indirect obligation, but such interpretation may seem rather forced given that restrictions are not prescribed by law. Instead, a blanket auction should be understood as an exercise of right whilst taking a flexible attitude toward the possibility of abuse of right.