論流抵約款之比較適用－－以民法第873條之1規定的適用為中心

The Research of the Contract Which Transferring Borrower's Security Property through Lender Acting as an Escrow Agent to Sale the Property and Use the Fund to Pay the Loan

我國民法於2007年3月28日修正增訂民法第873條之1規定，並刪除民法第873條第2項之規定，正式廢止流抵禁止的原則，故流抵契約的適用成爲我國擔保法制新的課題。本文基於以流抵契約實行爲抵押權實行方法的一種，探討流抵契約實行在抵押權現行規定適用可能發生的問題及解決方法，並就訂有流抵約定但以預約買賣等方式爲預告登記者，應如何類推適用抵押權的規定，參照日本「假登記擔保法」的規定，並爲比較研究。

The most common method in American for transferring mortgage property is the borrower simply to pay off the loan from proceeds of the sale and have the existing mortgage released. particularly the payoff way is adopted through lender acting as an escrow agent to sale the property and use the fund to pay the loan, However, the private sale method that is admitted and accomplished legislation in our country property law is lately on March 28, 2007. Therfore, The interesting question that the article aim to research arises how the new method roll smoothly in the primary security law. At the same time, people sometimes conceal their content that the borrower use his property as security for lender through the contract which the property were forespoken to sell to the lender. The security way how to use in the security law is also the article's research subject.