不動産執行에 의한 所有權變動에 관한 硏究 = (A)study on the change of ownership by the realty execution

부동산 강제집행·공매에 따른 소유권 변동을 연구했다.

Korea divides the compulsory execution of realty into auction process under the Civil Execution Act and public auction process under the National Tax Collection Law. The court of execution proceeds the auction based on the Civil Execution to realize the private individual's claim for feasance of private law.

On the other side, when the property owner doesn't perform the liability to taxation, the tax office which is the tax collection office proceeds the public auction under the National Tax Collection Law, on the basis of this delinquency. Civil execution process under the Civil Execution Act and delinquency process under the National Tax Collection Law, as these process have the commonness on the side of realization of monetary bond by government, have serious problem since the auction which is the legal disposal and the public auction by delinquency disposal toward the same property are reiteratively disposed.

However we don't have any legal basis that settles these both process or makes the system; which plays a role of the bridge between them and unifies them to proceed. The auction or the public auction have three steps to proceed. First is distress process, second is encashment process and last step third, allotment(distribution) process ends the execution procedures. These procedures make the change of the realty right by public power of the government without the intention of the owner or the obligator. Imagine that each related-organizations take these process toward one same land or building to realize their own purpose.

Process 'Execution' occurs and is disposed a lot as the nation gets developed or the economy fluctuates.

Therefore this execution causes the waist of time, efforts and money and even the legal side effect and the confusion of ownership's change which is pivotal in realty right's change as the side effects or evil of this procedures appear on the surface. In the case of the disposal of realty or the transfer of ownership registry commission under the civil execution process on the concrete, the whole disposal procedures by the civil execution come to nothing as the ownership has been already acquired through the public auction step based on the National Tax Collection Law and vice versa without exception.

This is the reason why the steps that prevent from conflict of both process and improve the relation between them are required when the civil execution and the delinquency disposal toward the same property concur. This thesis is developed as follows. In chapterⅠ, I explained the purpose, method and category of these studies. In chapter Ⅱ, I reviewed the auction process about property under the Civil Execution Act. I arranged this chapter to compare with the contents not considered in public auction step under the National Tax Collection Law through reviewing newly-established Civil Execution Act by titles.

Especially I focused on the contents that greatly complement problems and introduce new system under the old law: the side of allotment demand, bid process diversification, the allotment, etc. In chapter Ⅲ, I reviewed the process of delinquent's real distress that is preceding process of public auction under the International Tax Collection Law and also looked back on the request for share distribution and participation in attachment. I reflected on the problems and evil that were produced through the public auction process and the liquidation process.

Especially I also focus on the right of equality along with the property right if any unconstitutional fact exists due to the defect of public announcement system for public auction and the exclusion of general obligees from allotment process. In chapter Ⅳ, I looked over the difference by way of legalistic comparison with priority given to conflict of change of ownership and the problem by means of practical cases in the executive organ's application of dualistic system in the case of the problem happening through both auction process under the Civil Execution Act and public auction process under the National Tax Collection Law.

Relating to this, I also went through whether the legislative cases that can settle these both process exist or not. I also reviewed how the problem comes out due to the defect of public announcement system for public auction regarding the effect of public announcement of execution beginning decision. Moreover I analysed the difference between the auction and the public auction for the last step of executive process: the side of allotment demand, the effect of obligees' bond statement submitting and the problems coming from both process regarding the allotment order decision.

I determined the source and the base of these problems to find solutions and their roles of a bridge between two process. Laying a scheme to solve the problems and evil happening through the auction of the Civil Execution Act and the public auction of the National Tax Collection Law as I have stated until now, in chapter Ⅴ, I asserted the unification of executive organs as de lege ferenda, the use of realty public auction's announcement system and the revision or the establishment of the new National Tax Collection Law to unify the allotment system. After all, even if there is only one target realty, executive organs are divided as they execute.

This resulted in the execution for one target realty by two executive organs. Unfortunately even the case of supreme court says that the executive organs have no choice but to proceed separately in the basis of the defect of neutral settlement law or act between both process insofar as there are separate organs and laws or acts. As we went through the legislative cases, we didn't reach the conclusion whether we unify the executive organs like Germany or make the third law like Japan, which is called 'the Law about the settlement of delinquent disposal and compulsory execution' to settle both process. Executive process is the dec

제 1 장 서론 = 1 제 1 절 연구의 목적 = 1 제 2 절 연구의 범위 및 방법 = 3 제 2 장 민사집행법상 부동산의 경매과정 = 6 제 1 절 서설 = 6 제 2 절 부동산 압류 = 7 Ⅰ. 경매신청의 서면주의 = 7 1. 집행신청의 종류 = 7 2. 신청절차상의 경매와 공매의 구분 = 8 Ⅱ. 압류과정 = 9 1. 경매개시결정을 위한 준비 = 9 2. 압류효력에 관한 학설 = 13 3. 경매개시결정의 등기부상 공시 역할 = 16 4. 경매개시결정의 필요성 = 19 5. 경매에서의 이해관계인 = 20 Ⅲ. 경매의 사전 준비 = 22 1. 배당요구종기를 앞당길 필요성 = 23 2. 채권신고 = 26 3. 전문기관의 현황조사 = 27 4. 전문감정인의 평가 = 32 5. 무잉여 부동산의 경매진행 가부 = 38 제 3 절 매각(현금화) = 41 Ⅰ. 현금화 절차 = 41 1. 효율성을 제고한 매각방법 = 41 2. 매각가격을 위한 조건 = 42 3. 매수희망자를 위한 자료의 제공 = 45 4. 매각기일 진행 = 46 Ⅱ. 차순위매수제도의 효용성 = 49 Ⅲ. 공유자 우선매수권의 특례 = 51 1. 성질 = 51 2. 공유자 우선매수권 = 51 3. 결어 = 54 Ⅳ. 매수인의 적격성 판단 = 55 1. 매각허부결정 = 55 2. 부동산관리명령 = 56 3. 민법 제187조에 의한 소유권취득 시기 = 57 Ⅴ. 所有權取得을 위한 法定節次 = 59 제 4 절 배당에 의한 채권회수 = 62 Ⅰ. 서설 = 62 Ⅱ. 배당요구가 필요한 채권자 = 62 Ⅲ. 배당의 실시 = 65 1. 배당순위의 결정 = 65 2.