공동저당에서 이해관계의 조정

Joint Mortgage has the right to be preferentially paid from any mortgaged immovables but morgagee in next can not be fully repaid. To solve this conflicting interest between the joint mortgagee and mortgagee in next, Article 368 Clause 1 of the Korean Civil Code provides that where two or more immovables are mortgaged to secure one claim and the proceeds of the auction are to be applied simultaneously to its satisfaction, the burdens in respect of the obligation shall be divided in proportion to the proceeds of the auction sale of each immovable. Clause 2 of the above same article states that in the proceeds of the auction sale of part of the joint mortgaged immovables the mortgagee next in priority may exercise the right of the prior mortgages by subrogation to the extent of the amount which the latter would have received out of other immovables in accordance with the provisions of the preceding paragraph. The Article 368 is not enough to solve the problem of the conflicting interest when the mortgaged object belongs fully or partly to a person who has furnished his own property as security for the obligation of another and a third party purchaser. The conclusion can be summarized as follows. The Article 368 is to be applied when the mortgaged object are owned by one and same person. In case that at least one mortgagee is not debtor, his personal subrogation by payment prevails over the subrogation of mortgagee next in priority.