Keywords : The assignment of receivables; The notification of assignment; Transfer of a maximal-hypothec claim; Auction for the implement of the security right; Concomitance of hypothec; 주제어 : 채권양도; 대항요건; 당권부 채권의 양도; 담보권 실행을 위한 경매; 저당권의 수반성
영남법학, no.30, pp.85 - 112
This study describes mainly about assignment of secured obligation and each parties' legal actions on the different situations base on the registration of mortgage transfer.
It basically divided into several parts to depict those each several situations, such as when there are only agreement on the assignment of receivables, what would happen to the legal force on the hypothec (II), and if there are only registration of transfer, what would happen to the transferee's receivables on the hypothec (III).
This study also demonstrates all the cases and methods about the relationship between the notification on the assignment of an obligation and the registration of mortgage transfer.
The problem of receivables on hypothec is the fact that Korean people use two different kind of methods, which Korea had adopted by Germany and France, when we interpret the assignment of receivables. When people interpret about the fluctuation on real right, people use German formalism methods. However, when people interpret about the assignment of receivables, then people intrepret by the french methods on the notification of assignment. Therefore, there must be a point of contact that when those two methods meet, when people interpret one hypothec issues.
That wouldn't be fair if the contracting parties' hypothec is cancelled,because of the fact that they didn't transfer the hypothec on the registration. even if they register the hypothec later, there is no reason for the reinstatement of formal hypothec. Therefore, it is important to register the transfer in order to perform the hypothec's rights. However, the problem occurs when there must be a time period that hypothec has been transferred, but it has not yet registered. The legal force on that hypothec might be a problem to decide the ownerships of that hypothec's rights those situation,Even the transferee without the qualification of the notification of assignment are able to request the auction for the implement of the security right, when they submit the certified copy of the register, same as a codicil to a registration on the mortgage transfer. This conclusion is for the safety and reconcilable interpretation of the auction system for the transferee's implement of hypothec .