Title

Establishing three general requirements of the Doctrine of real subrogation under Korean Private Law

Publication Type

Journal Article

Publication Date

1-2011

Abstract

This work tries to establish three general requirements of the doctrine of real subrogation under Korean private law. The work argues that the following three elements are needed in applying the doctrine: (1) a pre-existing legal relationship binding the defendant; (2) substitution of an asset for another; and (3) statutory ground. The doctrine of real subrogation has commonly been understood as a means used when those who have security interests want to assert their pre-existing proprietary interests over the substitutes in the hand of their defendant. However, the work proves that the doctrine is not a terrain only for those security right-holders under the current Korean private law. They are also available for those entitled to enjoy benefits arising from the devise, donatio mortis causa, and trusts. Deduced from the analyses of the mechanism of the doctrine of real subrogation used in those cases are the three aforementioned requirements. And they show us that the doctrine can potentially be used much wider than it has been, and, contrary to some trust lawyers’ argument, the nature of the doctrine adopted in the law of trusts is not different from that recognised in the law of security since they all share the three general requirements presented in this work.

Keywords

Flora tracks, the old attribute, substitutability, law based on sex, Mortgage watering, trust property, bequest, foreclosures, common law, purpose property, real subrogation, pre-legal-the Existing Relationship, substitution Attachment, statutory Ground, security Interest, trust Fund, devise, donatio mortis case, common law system, separate patrimony

Discipline

Common Law | Estates and Trusts

Research Areas

Others

Publication

The Korean Journal of Civil Law

Volume

56

First Page

55

Last Page

85

ISSN

1226-5004

Publisher

Korean Civil Law Association

Additional URL

http://www.dbpia.co.kr/Journal/ArticleDetail/NODE01835088

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