A Comparative Study on the Priority Rights without Ownership

2016 Fiscal Year Final Research Report

• Project/Area Number: 26380127
• Research Category: Grant-in-Aid for Scientific Research (C)
• Allocation Type: Multi-year Fund
• Section: 一般
• Research Field: Civil law
• Research Institution: Keio University
• Principal Investigator: Suizu Taro 慶應義塾大学, 法学部(三田), 准教授 (00433730)
• Project Period (FY): 2014-04-01 – 2017-03-31
• Keywords: 代償的取戻権 / 代償的別除権 / 価値追跡

Outline of Final Research Achievements

When a debtor has gone bankrupt, the mere creditors will be subject to the principle of equal satisfaction, falling behind the holder of priority rights. This research, however, questions that a mere creditor should not be entitled to any priority rights. To deal with this problem, the research focuses on the following three points.
Firstly, the system of "Ersatzaussonderung" and "Ersatzabsonderung" in German law and their substance are examined, comparing with that of Japanese law. Secondly, this research insists that: (1) the applicability of the "dingliche Surrogation" to the right of ownership should be considered by taking the existence of "Ersatzaussonderung" into account and also, (2) in the case of mortgage by transfer, the existence of "Ersatzabsonderung" should be noticed. Lastly, the research analyses the discussion on "Wertverfolgung" in Austria, Germany and Japan with historical perspective, and then clarifies the legal requirement and effect of this special theory.

Free Research Field

民法