부동산경매 활성화를 위한 법제개선에 관한 연구

부동산경매 활성화를 위한 관련 법제의 개선방안을 연구한다.

A real estate auction system is a procedure that executive organ exercises the right of claim to the debtor by using public power. That is, forced execution is legal procedure that all the action is accumulated to achieve a right of claim while execution party is opposed under supervision of executive organ. But force execution procedure is a complicated and lengthy operation and right analysis and auction loan is difficult. As a result, real estate auction is not vitalized for the long time.

Therefore, the current code of civil execution needs to be improved to satisfy debtor which is the nature of forced execution process, to prevent debtor from unfair infringement, to prevent social and economic loss from execution delay. A real estate auction market is strongly but negatively correlated with economic situation. In other words, when the economic situation is good, the contract price is rising because supplies in the auction market decrease and demands increase. On the contrary, when the economic situation is getting bad, the contract price becomes lower because the rate of overdue bank loan increases and the collateral real estates comes to the auction market.

That is to say, the movement of real estate auction market can be used as an appraisal index of current economic situation. Recently many investors are showing more interests to the real estate auction as the expectation for the economic recovery becomes high. But real estate auction is not that vitalized because of a lot of problems such as rights analysis. This study look deeper the main contents of the current code of civil execution, and consider legislation of real estate auction system in USA, Germany, France and Japan. In USA, there are only 7 provisions about forced execution and disposal. The validity of judgment and forced execution procedures are different in each state.

The conflict related with real estate dealing is prevented in advance by the legal specialist intervening and monitoring whole real estate dealing process. We also need to bring in specialist system such as real estate auction specialist to activate real estate auction system in Korea. In Germany, the system is not creditor-oriented legislation such as Korea, there are many exceptional provisions to protect debtor in the code of civil procedure. In France, there are two systems for the forced execution. One is forced auction, the other is judicial hypothec. The latter system has historical tradition and more preferred.

In case of Japan, the real estate auction systems are very similar to us, but validity of registration is different. The Korean civil law, like German civil law, rules ‘the changes of real right ownership by legal acting take effect only after registration’. But registration is ruled as an opposition requisite in Japanese civil law. Settlement of mortgage by auction loan does not disappear and it is admitted as a prior mortgage bond. All these systems help to vitalize real estate auction in Japan. The survey about real estate auction market was done twice in this research.

It covers investor’s interest on auction market, current situation of auction loan, expected return of auction, investment region, main obstacles of auction, etc. Many investors and end users are still reluctant to participate in the auction market because of the unpredictable risk. Especially the main obstacles of real estate auction are difficulty of right analysis, inconvenience of auction loan and a burden on eviction. This study considers foreign real estate auction system to vitalize auction market and then analyzes problems of current real estate auction on the basis of survey, and finally proposes improvement plan for the laws as follow.

The first, it is necessary to introduce "real estate auction professional system”. The total process of real estate auction usually takes considerable time from start to end. This time span makes most of people have a feeling of uneasiness about real estate auction. Moreover it is very difficult for most people to clearly analyze which rights become extinct or not by the auction. It is also true that a lot of people don’t have professional knowledge of analyzing real estate. Therefore, the real estate auction specialist who can protect a buyer from an uncertain risk through the auction process is urgently needed.

This study suggested specific law improvement plan for introducing “real estate auction professional system” for protecting auction participant from risk. Buyers can have more safe chance to participate in auction market through this specialist system. And if another liability of reparation is added on this system, auction market can be more vitalized. The second, delivery order system need to be improved in order to deliver the real estate to the buyer more quickly. The buyer has ownership including the right of using and disposal when payment is done. But if the real estate is not delivered from possessor, the buyer cannot use the rights that he has.

Even though there is deliver order system under the code of civil execution to force quick delivery, in many cases it is not easy to have the real estate delivered in a short time. Delivery order should not be done on buyers request after payment to protect the buyer’s right. Delivery order needs to be included in sales approval decision, such as German case. And the auction related delivery exemption law needs to be legislated for the quick process of delivery order. It is also need to write the delivery date clearly on delivery order statement for the possessor to have enough time to prepare delivery.

If the right of buyer is thoroughly protected through revision on delivery order system, the real estate auction market can be revitalized. The third, the examination power should be given to the executor for the thorough investigation. The public confidence needs to be granted on the ‘present situation investigation report’ and laws improvement about the government loss