보증인의 변제자대위를 위한 부기등기 필요성 검토와 민법개정 제안 -일본민법 제정 및 개정 과정으로부터의 시사점을 중심으로-

Japanese Civil Code Article 501 regarding the subrogation of the person who made a payment had almost the same content as Article 482 of the Korean Civil Code, but there were major changes in content in the 2018 revision. In particular, deleting supplementary registration, which was stipulated in the enacted Japanese Civil Code, derived from Article 483 of the Ancient Civil Law, was one of them. At the time of the revision, the members explained the reason for deleting supplementary registration as follows. First, since the jurisprudence of the subrogation is the transfer of the creditor's rights and security rights, there is no reason for additional registration even in the case of the subrogation of the obligee compared to the transfer of claims that does not stipulate additional registration. Second, a third party who acquires real estate for which a security right has been established must confirm the security right registration by himself in light of the disclosure function of real estate registration. This reason can be applied to Article 482 of the Korean Civil Act as it is. The reason why subrogation must be added to the security right registration in the subrogation is to protect the third party who acquires the real estate for which the security right has been established. This is the reason why Article 482, Paragraph 2, Item 1 of the Korean Civil Act stipulates that when a guarantor subrogates a creditor to a third acquirer of a collateral, additional registration must be made in advance. However, even if the guarantor pays the main debt, in the situation where the guarantor becomes a subrogator, not only does the claim and security right of the creditor not extinguished, but also the registration of the security right in the real estate registry is not canceled. At this time, the third party who wants to acquire the collateralized real estate through the public disclosure function of the real estate register should know that the execution of the security right by the subrogator cannot be prevented. There is no need to protect a third party who acquires the real estate believing that the right to mortgage will be canceled according to subrogation even though the real estate register has not been checked or confirmed. Furthermore, there is no reason to stipulate supplementary registration in the subrogation of the obligee, which is not regulated in the assignment of claims, which understands the subrogation of the perpetrator as the transfer of rights. Conceivably, in Article 482, Paragraph 2, Subparagraph 1 of the Korean Civil Act, among the requirements for subrogation of a person who has paid for the third acquirer of a guarantor, supplementary registration is not necessary, so it is safe to delete it along with the applicable provisions of subparagraph 5. If supplementary registration is necessary, rather than a compulsory regulation that supplementary registration must be made for the subrogation of the person who has paid off, it may be considered to leave the possibility open for supplementary registration, and leave the specific procedure to the Real Estate Registration Act.