주택법 제 제40조에 따른 금지사항 부기등기 조에 = A Study on the Registration of an Additional Entry for Prohibit Affairs Pursuant to Clause 40 of the Housing Act

주택법상 금지사항 부기등기의 제도와 효력을 검토했다.

Housing construction method can be largely divided into the method by the Housing Act and by the Housing Renewal Act. Housing construction by the Housing Act is required to notice publically the prohibit affairs of the Housing Act limiting the settlement of mortgage in the registration of an additional entry to prevent forcible execution by creditor of the construction operator under Clause 40 of the Housing Act. This is an appropriate measure taken to guarantee the right of occupant-to-be.

However, in the Housing Act, Clause 40, Article 3, it is defined that mortgage cannot be settled for the house and land without consent by the occupant-to-be during 60 days after the day to apply for the registration for transfer of the ownership of the house and land by the occupant-to-be recorded in the registration of an additional entry for the prohibit affairs. On the above regulation there are three issues stated below: First, does the day to apply for the registration for transfer of the ownership mean the approval date for use by the Building Act or the registration date of ownership by the Registration of Real Estate Act?

Second, does the regulation that mortgage cannot be settled for the house and land without consent by the occupant-to-be during 60 days mean mortgage can be settled without cancellation procedure of the registration of an additional entry after 60 days?, or mortgage cannot be settled without cancellation procedure even after 60 days?, or if cancellation procedure is required, does the creditor of the construction operator can apply for the cancellation by subrogation?

Last, if there is a request for attachment or provisional attachment after 60 days from the occupation date in the state that the registration of an additional entry for the prohibitions is not cancelled, is the attachment or provisional attachment to be dismissed? The regulation of the Housing Act on the above has considerable influences on people but the researches have not been made in depth. The Housing Act was revised, in part, on May 31, 2010 (No. 10331), and the enforcement ordinance and rules have been revised in turn, but still Clause 40, Article 3, the subject of this research has not been revised.

I hereby suggest a reasonable criterion for authorized construction by the interested parties.