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Chapter X Mortgages第十章 抵当権
Section 1 General Provisions第一節 総則
Article 369第三百六十九条
Content of Mortgages(抵当権の内容)
Article 369, paragraph (1)
A mortgagee has the right to have the mortgagee's claim satisfied before other obligees out of the immovables that the obligor or a third party provided to secure the obligation without transferring possession.
Superficies and farming rights may be the subject of a mortgage. In this case, the provisions of this Chapter apply mutatis mutandis.
地上権及び永小作権も、抵当権の目的とすることができる。この場合においては、この章の規定を準用する。
Article 370第三百七十条
Scope of Effect of Mortgages(抵当権の効力の及ぶ範囲)
Article 370, paragraph (1)
A mortgage extends to the things that form an integral part of the immovables that are the subject of the mortgage (referred to as "mortgaged immovables" below) except for buildings on the mortgaged land; provided, however, that this does not apply if the act establishing the mortgage provides otherwise or the revocation of fraudulent act may be demanded as prescribed in Article 424, paragraph (3) with regard to the act of the obligor.
If there is a default with respect to a claim secured by a mortgage, the mortgage extends to the fruits of the mortgaged immovables (limited to those that have not been collected).
Mutatis Mutandis Application of Provisions on Right of Retention(留置権等の規定の準用)
Article 372, paragraph (1)
The provisions of Article 296, Article 304 and Article 351 apply mutatis mutandis to mortgages.
第二百九十六条、第三百四条及び第三百五十一条の規定は、抵当権について準用する。
Section 2 Effect of Mortgages第二節 抵当権の効力
Article 373第三百七十三条
Order of Priority of Mortgages(抵当権の順位)
Article 373, paragraph (1)
If more than one mortgage is created with respect to the same immovables, the order of priority of those mortgages follows the chronological order of their registration.
同一の不動産について数個の抵当権が設定されたときは、その抵当権の順位は、登記の前後による。
Article 374第三百七十四条
Changes in Order of Priority of Mortgages(抵当権の順位の変更)
Article 374, paragraph (1)
The order of priority of mortgages may be changed with the agreement of all mortgagees; provided, however, that if there are interested persons, the consent of the same must be obtained.
The changes in order referred to in the preceding paragraph do not become effective unless registered.
前項の規定による順位の変更は、その登記をしなければ、その効力を生じない。
Article 375第三百七十五条
Scope of Secured Claims Under Mortgages(抵当権の被担保債権の範囲)
Article 375, paragraph (1)
If a mortgagee has the right to demand periodic payments including interest, that mortgagee may exercise the mortgage solely with respect to payments of the last two years before maturity; provided, however, that with respect to prior periodic payments, if special registration is effected after maturity, the mortgagee is not precluded from exercising the mortgage as from the time of that registration.
If the mortgagee has the right to claim compensation for damage resulting from defaults in obligations, the provisions of the preceding paragraph also apply to the damage of the most recent two years; provided, however, that the aggregate period including the interest and other periodic payments may not exceed two years.
A mortgagee may apply the mortgage to secure other claims, or assign or waive that mortgage, or its order of priority, for the benefit of other obligees of the same obligor.
In the cases referred to in the preceding paragraph, if a mortgagee disposes of the mortgage for the benefit of two or more persons, the order of priority of the rights of persons who benefit from that disposition follows the chronological order of supplemental registration in the registration of the mortgage.
Requirements for Perfection of Disposition of Mortgages(抵当権の処分の対抗要件)
Article 377, paragraph (1)
In the cases in the preceding Article, the mortgagee may not duly assert the disposition of mortgages against principal obligors, guarantors, mortgagors or their respective successors unless the disposition is notified to the principal obligors or the principal obligors consent to that disposition in accordance with the provisions of Article 467.
If the principal obligors have received the notice or given the consent pursuant to the provisions of the preceding paragraph, payments made without the consent of the persons who benefit of the disposition of the mortgage may not be duly asserted against those beneficiaries.
Direct Satisfaction of Mortgage with Purchase Price(代価弁済)
Article 378, paragraph (1)
If a third party that purchases the ownership or superficies of a mortgaged immovables pays the price of the same to a mortgagee at the request of the same mortgagee, that mortgage is terminated for the benefit of that third party.
A third party acquirer of a mortgaged immovables may make a claim for the extinguishment of a mortgage as prescribed in Article 383.
抵当不動産の第三取得者は、第三百八十三条の定めるところにより、抵当権消滅請求をすることができる。
Article 380第三百八十条
Article 380, paragraph (1)
No principal obligor, guarantor or successor of the same may make a claim for the extinguishment of a mortgage.
主たる債務者、保証人及びこれらの者の承継人は、抵当権消滅請求をすることができない。
Article 381第三百八十一条
Article 381, paragraph (1)
A third party acquirer of a mortgaged immovables that is subject to a condition precedent may not make a claim for the extinguishment of a mortgage while it is uncertain whether or not the condition precedent will be fulfilled.
Timing of Claims for Extinguishment of Mortgages(抵当権消滅請求の時期)
Article 382, paragraph (1)
A third party acquirer of a mortgaged immovables must make a claim for the extinguishment of a mortgage before seizure under auction procedure as a result of the enforcement of the mortgage takes effect.
Procedures for Claims for Extinguishment of Mortgages(抵当権消滅請求の手続)
Article 383, paragraph (1)
If a third party acquirer of a mortgaged immovables makes a claim for the extinguishment of a mortgage, that third party must send the documents stated below to each registered obligee:
a document that specifies the cause and date of the acquisition, the name and address of the assignor and the acquirer, the nature, location and price of the mortgaged immovables and burdens of the acquirer;
a certificate of registered information regarding the mortgaged immovables (limited to certificates certifying all registered information currently in effect); and
抵当不動産に関する登記事項証明書(現に効力を有する登記事項のすべてを証明したものに限る。)
Article 383, paragraph (1), item (iii)
a document to the effect that, if an obligee does not enforce the mortgage by filing a petition for auction within two months, the third party acquirer of the mortgaged immovables will pay the price provided for in item (i) or an amount specifically fixed in accordance with the order of priority of claims, or deposit the price or that amount with official depository.
In the cases stated below, the obligee that has received the documents stated in each item of the preceding Article is deemed to have approved the price or amount that the third party acquirer of the mortgaged immovables has offered as stated in the document stated in item (iii) of that Article:
if the obligee does not enforce the mortgage by filing a petition for auction within two months after receipt of the documents stated in each item of the preceding Article;
if the obligee withdraws a petition under the preceding item;
その債権者が前号の申立てを取り下げたとき。
Article 384, paragraph (1), item (iii)
if a decision dismissing a petition under item (i) has become final and binding; or
第一号の申立てを却下する旨の決定が確定したとき。
Article 384, paragraph (1), item (iv)
if a decision revoking auction procedures based on a petition under item (i) (excluding rulings under the provisions of Article 63, paragraph (3) or Article 68-3, paragraph (3) of the Civil Enforcement Act applied mutatis mutandis under Article 188 of that Act, or under the provisions of Article 183, paragraph (2) of that Act if the document set out in paragraph (1), item (ii), (d) of that Article is submitted) has become final and binding.
If an obligee that has received the documents stated in each item of Article 383 files a petition under item (i) of the preceding Article, that obligee must give notice to that effect to the obligor and assignor of the mortgaged immovables within the period under that item.
Effect of Claims for Extinguishment of Mortgages(抵当権消滅請求の効果)
Article 386, paragraph (1)
A mortgage is extinguished if all registered obligees approve the price or amount offered by the third party acquirer of the mortgaged immovables, and the third party acquirer of the mortgaged immovables has paid or deposited with the official depository the price or amount approved.
Perfection of Leases with Registered Consent of Mortgagees(抵当権者の同意の登記がある場合の賃貸借の対抗力)
Article 387, paragraph (1)
A registered lease may be duly asserted against mortgagees that hold mortgages registered before the registration of that lease if all mortgagees that hold those mortgages give their consent and those consents are registered.
For a mortgagee to give the consent referred to in the preceding paragraph, the approval of the persons that hold rights for which the mortgage is the subject matter and other persons who should suffer detriment as a result of the consent of the mortgagee must be obtained.
If the land and a building on that land belong to the same owner, a mortgage is created with respect to that land or building, and the enforcement of that mortgage causes them to belong to different owners, it is deemed that a superficies has been created with respect to that building. In this case, the rent is fixed by the court at the request of the parties.
Auction of Buildings on Mortgaged Lands(抵当地の上の建物の競売)
Article 389, paragraph (1)
If a building is constructed on a mortgaged land after the creation of a mortgage, the mortgagee may auction the building together with the land; provided, however, that the right of priority of that mortgagee may be exercised solely against the proceeds of the land.
The provisions of the preceding paragraph do not apply if the owner of that building has rights with respect to the possession of the mortgaged land that may be duly asserted against the mortgagee.