대항요건이 없는 채권양수인에 담보권실행 경매신청에 관한 소고 - 대상결정: 대법원 2024. 8. 19.자 2024마6339결정 -

초록

The objects and scope of the assignment of claims continue to expand; an assignee who has not satisfied the requirements for perfection, however, cannot assert the assigned claim against the debtor. The subject decision held that an assignee may apply for an auction on the basis of the mortgage even without having satisfied the requirements for perfection, while permitting the debtor to contest this through an objection or an immediate appeal, in which case the applicant-creditor must prove that the requirements for perfection have been met. This reflects the “opposability-requirement theory” (daehang- yogeon-seol), which is inconsistent with the purpose of the perfection requirements— namely, to prevent unforeseeable harm to the debtor. Adopting the “effectiveness- requirement theory” (hyoryeok-balsaeng-yogeon-seol), this article takes the view that a mortgage appurtenant to a claim lacking the requirements for perfection is without effect. To prevent both the creation of such ineffective mortgages and the resulting erosion of trust in the registry, the article proposes (i) introducing into the Real Estate Registration Act a provision requiring an assignee to furnish evidence of having satisfied the requirements for perfection when applying for registration of the transfer of a mortgage, and (ii) extending the authority to give notice of an assignment to the assignee as well.

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