債権者代位権と債務者の無資力

Japanese civil law Article 423 are regulating that the creditor may, for the purpose of preserving an obligation of his own, exercise the rights belonging to the debtor. In principle, no one can exercise the rights of any person other than himself, but the creditor may, when necessary to protect and preserve his claim, exercise rights belonging his debtor. The reason is that the entire property of debtor forms security for his creditor; that is to say, in case the debtor fails to perform the obligation, the creditor may obtain performance by seizing and selling all the property. But such things as obligations,which are included among the debtor\u27s properties, may not be at once appropriated for performance. Besides, when the debtor is burdened with a heavy obligation, it sometimes happens that he will not voluntarily exercise his rights as he does not stand to gain anything by pushing third parties (namely the debtor\u27s debtors) and collecting his loans from them only to have them taken over by his own creditor in turn. When it comes to the worst, there are cases where the debtor actually conspires with his own debtors in order to injure the interest of creditor; and if the debtor persists in neglecting to exercise his rights and, on the contrary, reduces his assets, the creditor\u27s security thereby injured, and it may eventually come to pass that the creditor will not be able to obtain performance of the outstanding obligation in his favour. The creditor is therefore enabled by the present Article to exercise rights belonging to debtor in order to protect and preserve his rights, that is to say, the creditor is entitled, for the purpose of preserving his rights, to exercise rights against third debtors in the name of the debtor notwithstanding the non consent of the latter. There are two questions that after the creditor exercise the rights against third debtors, if he may get payment prior than the other cerditor. The judicial precedent had admited it in fact, and common doctrine were admited it too. The other question is if it need the debtor\u27s insolvenncy for the condition to excercise this right. This paper are focus to research this question. The result are the creditor can get payment prior than other creditors and need not the condition of debtor\u27s insolvency but need the debtor\u27s responsible for delay to perform its debt

債権者代位による抵当物件の占有排除

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\u27t 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\u27s illegal possession by the action subrogation