공동근저당권의 실행과 부동산경매절차상의 제문제- 일괄매각, 잉여주의, 과잉매각금지 원칙을 중심으로 -

Civil Execution Act stipulates Ruling on Blanket Auction, Principle of Surplus, Non-permission for Sale in Case of Excessive Auction in real estate auction procedures. Where it is deemed to be adequate to put several immovables up for a blanket auction by taking account of their location, shape, relation of utilization, etc., a court may render a ruling to put them up for a blanket auction, either ex officio or upon request of the interested parties. In cases of selling immovables, if it is deemed to be adequate to put them up for a blanket auction together with other sorts of assets by taking account of their location, shape, relation of utilization, etc., a court may render a ruling to put them up for a blanket auction either ex officio or upon request of the interested parties(Civil Execution Act 98 ①, ②). However, if the ruling on blanket auction is applied as it is in the joint floating sum mortgage, there is a problem in the conflict between the auction execution option of the joint floating sum mortgage holder and the right to decide the ruling on blanket auction by the court of execution and in the evaluation of the minimum sale price for the joint floating sum mortgage. In the former case, the problem can be solved by restricting the options for executing an auction by the joint floating sum mortgage, and in the latter case, the problem can be solved by an integrated evaluation method rather than an individual evaluation for the real estate for which the joint floating sum mortgage. Unless one has made a successful bidder take over an encumbrance as to the claim preceding that of an execution creditor, or unless the proceeds of sale are deemed to be sufficient to clear such encumbrance, the relevant immovables shall not be sold(Civil Execution Act 91 ①). When a court deems that there shall remain no surplus if all encumbrances preceding the claim of execution creditors and the costs of procedures are reimbursed with the minimum auction price, it shall notify the execution creditor thereof(Civil Execution Act 102 ①). If the provisions of principle of surplus are applied to joint floating sum mortgage, there is a problem that it is impossible to determine whether or not to apply surplus because the secured bonds are increasing or decreasing due to the characteristics of joint floating sum mortgage. In addition, when the joint floating sum mortgage creditor applies for an auction for some of the plurality of real estate, whether the decision on surplusism should be based on the total amount of the joint floating sum mortgage creditor's secured debt based only on the real estate for which the auction was requested, or the ratio of all real estate to each other. I think the latter position is valid for the purpose of Article 368 of the Civil Code and for the protection of interested parties and subordinated mortgages. Where several properties are put up for a blanket auction, if the proceeds of a part of them are sufficient to reimburse the amount of claims of all creditors and the costs for compulsory execution, the sale of other properties shall not be permitted: Provided, That the same shall not apply where the land and buildings appurtenant thereto are put up for a blanket auction, or where the economic virtue is substantially dropped if the properties are sold separately, or where a consent of the debtor exists(Civil Execution Act 101 ③). If the principle of non-permission for sale in case of excessive auction are applied to joint floating sum mortgage may undermine the legislative purpose of the decision on completion period of demand for distribution system stipulated by the Civil Execution Act, so certain restrictions are needed.