債権者代位による抵当物件の占有排除

概要

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Mortgage is a priority repayment from the mortgaged object which without go with possession by mortgagee. This is the dogma of mortgage. It means that the mortgage right is only can control the sales price of the object but can't control the object. By the way, someone who abuse the short term lease contract or illegally occupy the object that disturb the mortgagee in the sale of auction procedure. Because there have such illegal ocupation, so that nobody want to apply the aucution, then the mortgagee cannot satisfied with its sale price. In this case, if there have anyway that mortgagee can exclude the illegal possessor so that he can easy to take auction. There are some way as like to claim the delivery of the object by real right or to claim the delivery of the object by the subrogation of the owners action. However, the Supreme court had denied all these way at March 22, 1991. But a courtroom of the supreme court had changed this judgement and affirmed all these way at November 11, 1999. This paper will examine these issues particularly the problem of exclude the third person's illegal possession by the action subrogation.
桃山学院大学の論文