학술세미나 발표논문

개인회생절차상 주택담보채권의 별제권 배제론


Exclusion of Preferential Claim for the House Mortgages in the Individual Debtor's Rehabilitation Proceeding


피인용수 : 0(자료제공 : 네이버학술정보)



When a debtor who applied for a individual rehabilitation proceeding owns a house with a lien set up by a banking institution, an allegation has arisen about the necessity of special measures distinctively from a general lien acknowledged as a preferential claim (hence, the exclusion of preferential claim). Such an allegation, however, (1) stands against equity for other lienholders who acquired a security from the debtor’s asset other than a house, (2) also stands against the equity for discrimination without justifiable reasons for the same collateral lien because the lien - lien right, pledge right, leaseholder right, etc. - has been set up as well as mortgage right or provisional security on housing as well, and (3) brings out a contradiction that the debtor who owns a house can be safeguarded, but a tenant who does not own a house cannot when the tenant has set up the pledge right on the house mortgages. When the preferential claim on the house mortgages is authorized, compulsory execution on the guarantor should not be enforced for a certain period of time. The validity of the change right on the house mortgages affecting the guarantor as well should not be delimited only to the guarantor of the house mortgages, but to all guarantors. Moreover, the rehabilitation proceeding and the bankruptcy proceeding should also be assessed for possible applications, in addition to the individual rehabilitation proceeding. When an unattainable plan is set up, proceeding abolishment or bankruptcy adjudication can take place recursively. Indiscrete purchases of housing and unattainable preferential claims can also bring about cases of misapplication. International consistency cannot be achieved despite the comparison with, for example, Germany, where the creditor furnishes resolution procedures and whose court decides after a debtor sincerely makes repayments for six years and then after he applies for the exemption permit, which can give rise to the debtor’s moral hazard. To conclude, these allegations mentioned above seem somewhat irrational even after comparing with Korea’s economic status and the legislations of more developed nations than Korea. An alternative measure is to expand the range of exemption properties, so that if a need arises to secure a debtor’s residential right, equity must be maintained between the debtor who resides in a leased housing and the debtor who files an bankruptcy proceeding.


Ⅰ. 서론
 Ⅱ. 별제권 배제론의 내용
  1. 별제권 준용 배제
  2. 무담보채권자의 보호
  3. 강제집행 등의 금지
  4. 무담보채권에 대한 조기 면책결정
 Ⅲ. 별제권 배제론의 문제점
  1. 담보권의 본질에 반하는 과도한 제한
  2. 이행불가능한 변제계획의 강요
  3. 공정·형평성 원칙에 반하는 주장
  4. 국제기준과의 부적합성
  5. 국가경제에 대한 부정적 영향
 Ⅳ. 결론


  • 박승두 Park, Seung-Du. 청주대 법대


자료제공 : 네이버학술정보

    함께 이용한 논문

      ※ 기관로그인 시 무료 이용이 가능합니다.

      • 5,800원

      0개의 논문이 장바구니에 담겼습니다.