假登記擔保에 관한 硏究 = (A) Study on the provisional Registration Security

부동산 담보 수단인 가등기담보의 법적 성격과 제도를 연구했다.

As a typical security system in civil law there are lien, right of pledge and mortgage, etc., however the lien and the right of pledge is vary limitted in it's object and adaptive scope, also for the mortgage in dealing circle has been customarily made good use of a new type of security system after improved as it's procedure from settlement to execution were too complicated. such an abnormal security system is, while the other system could have the creditor realize the bonds simply and rapidly, being regulated the system by the Civil Law(Par.

608, chapter 607) and it's precedent in a view point of it has risk of loosing root and all of the security it far exceeds the face values of the bonds to the debtor. However, since the abnormal security which is being practice by means of provisional registration rules almost all of the dealing circle also evasion of the law that makes good use of reconciliation before the instituting a law suit is prevailed, it is argent requirement of enactment of the special law with which effectively regulated. According " A law for the provisional security" was established.

Then the abnormal security in the past has been regulated in accordance with the same law for almost all of and thereby has become to be effectively regulated these as it becomes a real rights granted by way of security as a stature law.

It is, however, every issues has not been solved so far as the same law was established, still all of the points of issues are remained at the time of acquisitions of the ownership of security when enforcement the following issues ; reconciliation issue before instituting a law suit; requesting procedure of the primary registration caused by the provisional registration in accordance with the real estate registration; classification of the general provisional registration and security provisional registration; issue of the evaluation method of security and it's rules of improper evaluation and security right for provisional registration, etc.

Consequently followings are reforming plan of this thesis: Firstly, ff the reconciliation before instituting a law suit, should to have application, between the persons concerned of security agreement of the provisional registration, of chapter 103 and 104 of Civil Law and Chapter 607, 608 of the same in an view point of reconciliation agreement in accordance with the Civil Law. Secondly, the procedure issue of primary registration recorded in the provisional registration of security should be settled by the regulations inclosed with the letter of approval of the third person who affect their interest at the time of registration in accordance with the registration of real estate.

Thirdly, for the general provisional registration and security provisional registration shall classify the both by recording the reason for registration of the later as a security agreement for the reason of registration. Fourthly, With regard to the evaluation method of the security mortgage, should prescribe whether the court is concerned in accordance with security law for the previsional registration.

Fifthly, for the acquisition of ownership for the security mortgage of the rightful person of security provisional registration, it should be possible to pay the ; liquidated amount after liquidation period is over regardless of before or after the registration, and for the time of acquisition should be at the time of the liquidated amount was paid, if in case of registration has not been made it is reasonable to interpret when registered after paid the liquidated amount.

목차 第1章 序論 = 1 第1節 硏究의 目的 = 1 第2節 硏究의 範圍와 方法 = 2 第2章 假登記擔保一般 = 4 第1節 假登記擔保의 意義 및 沿革 = 4 I. 假登記擔保의 意義 = 4 II. 假登記擔保의 沿革 = 5 III. 假登記擔保의 法的 性質 = 8 第2節 假登記擔保權의 類型 = 10 第3節 假登記擔保權의 社會的 作用 = 11 第4節 假登記擔保 등에 관한 法律 = 13 I. 假登記擔保法의 制定目的 = 13 II. 假登記擔保法의 特徵 = 14 III. 假登記擔保法의 問題點 = 17 第3章 假登記擔保權의 設定과 消滅 = 21 第1節 假登記擔保權의 設定 = 21 I. 假登記擔保權의 設定契約 = 21 II. 假登記擔保權의 目的物 = 22 III. 假登記擔保權의 公示方法 = 23 IV. 被擔保債權 = 23 第2節 假登記擔保의 移轉 = 25 第3節 假登記擔保의 消滅 = 27 第4章 假登記擔保의 效力 = 28 第1節 假登記擔保의 一般的 效力 = 28 I. 總說 = 28 II. 假登記擔保權의 對內的 效力 = 29 III. 假登記擔保權의 對外的 效力 = 36 第2節 假登記擔保權의 實行 = 42 I. 序說 = 42 II. 假登記擔保權의 實行의 요건 = 43 III. 假登記擔保權의 實行의 通知 = 44 IV. 假登記擔保權의 淸算 = 47 V. 所有權의 取得 = 53 VI. 利害關係人의 保護 = 55 VII. 債權者의 保護 = 57 第5章 結論 = 59