「假登記 擔保등에 관한 法律」에 대한 一考察

• 발행기관: 호서대학교 사회과학연구소
• 저자명: 金泰翰
• 간행물 정보: 『사회과학연구』제6집 제1호, 147~163쪽, 전체 17쪽
• 주제분류: 사회과학 > 행정학
• 파일형태: PDF
• 발행일자: 1987.12.31

영문 초록

Our Civil Law prepares morgage system as security for loan, and of course it is the best system for security for loan. But the people in general evade to use it as security on account of high cost and delay of process. That is the reason why the common people are willing to choose the provisional registration as security. However it is apt to be exploited for the convenience of creditors and it is misued by users as a means of compromise before presenting a case to the court. So the laws on provisional registration security was established to eliminate such irrationabilitics. Therefore the purpose of this dissertation is to define the concept of provisional registration security and to relate or to harmonize the theories and judical precedents before the establishment of the law on provisional registration security with the aim and meaning of the establishment of the law. The provisional Registration Security is a mortgage system created by a provisional registration. The system which has not been pre-estimated in the civil law has made always the legal question unclear. There were many occasions not only bringing disadvantageous results to the concerned parties such as creditor, next-order-rightful person, etc., but also giving severe economic harm to the debtor by way of taking the high value object property from him due to the small amount money in case of prior negotiation and compromise before instituting a lawsuit. The Law concerning Provisional Registration Security, etc. has been established and is in enforcement since 1 January 1984 in order to remedy such corrupt practices, in this regard, this thesis examines and compares the law practice from the beginning of setting up of the Provisional Registration Security Right up to its expiration with the traditional theory and several judicial precedents and emphasizes that this law is impartially regulated the concerns of creditor, debtor and third creditor. In other words, the protection ruled for each applicable person is summarized as follow. Firstly, as for the creditor, the Provisional Registration Security was no more than a preservation of the priority in the right of claims for property-transfer in the past, but now it gives him both the precedence in repayment, and the right of claims, for public sale as the same real right as mortgage. Secondly, as for the debtor, he has a clearing system which requires the creditor to notify the amount to be payed off, after assessing the security if he is exert the security right. Besides he has two month to spare after the notice arrives, and the right to claim simultaneous fulfilment in case of the transfer of the right to a real estate. And even if the procedure of the property-transfer of a security has been finished, he can claim (as long as for 10 years) to erase until the clearing procedure is completed. Finally, the third interested parties can have notice of the execution of the security right, and the posterior creditors can have the opportunity for securing his share in paying off. In the past, the posterior creditor had no way to oppose the prior creditor who can claim the right to provisional registration. In case the latter completes the registration, but now the former has the right to claim for public sale during the clearing period even if the payment is not due. As examined above, this law treats the Provisional Registration Security Right as one of independent material security rights, and so this thesis describes the proper and timely establishment of such legislation which was realistically revised. Formerly the problem could not solved by judicial precedents.

목차

Ⅰ. 序言

Ⅱ. 假登記擔保의 法理構成

Ⅲ. 假登記擔保法의 適用範圍

Ⅳ. 假登記擔保法의 問題點

Ⅴ. 結論

參考文獻

Abstract