假登記 擔保에 관한 硏究

부동산 가등기담보의 법적 성격과 거래상 활용을 연구했다.

The provisional registration is originally a preliminary registration for the conservation of order of registration But in the practical money transaction a tendency has come to be found that the provisional registration is used as a security for loan in view of expected competency to acquire the ownership of real estate through the effect of provisional registration. Such a tendency became a kind of trade custom, and n o w the provisional registration performs a social function as a sort of security system for loan aloof from its original objective.

The transaction relationship by the provisional registration as security system for loan is so much different from that of original provisional registration that it is not proper to apply the concept and theory of original pro-provisional registration to the provisional registration as security. I have researchers the concerto contents of the transaction relationship by the provisional registration which is common in the loan trade through the method of enquete. The conclusin of the enquete is that the provisional registration is widely utilized as secularity for loan with the system of reconciliation by the judge before trial.

Yet the decision's of Supreme Court maintain opinions that the provisional registration is only a preliminary registration and that it has only the effect to preserve the order of registration, but if the performer of the provisional registration transfers it to real registration he can acquire retropectively the real right from the date of his provisional registration. But as described above, the provisional regrstration is so widely used as security for loan in the field of money transaction that the decision which is opposite the general of transaction seems not to be proper. Our Civil Law prepares mortgage 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 at as security on account of high cost and delay of process. That is the reason why the common people are wi1 ling to choose the provisional registration as security. So I think it is proper to deal the provisional registration as security real right in customary law, and then we can properly regulate the interests of parties concerned such as creditors, debtors and the third acquisitors of the property. It is not impossible to interpret the provisional registration as security real right even under the existing civil law.

But it is hard to deal the provisional registration as security in the field of the law of registration on real estate, civil procedure law, auction law and the law of national tax collection, as the provisional regisration is nothing but a preliminary registration under those laws. The provisional registration which has mere function to preserve the order of registration in the sphere of those laws changes retrospectively int the powerful security real right when the regular registration is finished: that shows obvious inadquacy in the practice of law.

It is the conclusion of this paper that a new statute for the security real right by the provisional registration must be stipulated and the laws concerned should be revised so as to meet the up-to-date need for security system for loan.