假登記擔保法의 改善方案에 관한 硏究

가등기담보법의 문제점을 분석하고 개선방안을 제시했다.

The Provisional Registration Security Act (Established on Dec. 30, 1983) was established to give ordinary citizens, the weak in economy, sufficient legal protection against extortion from debtors. However, since the establishment and initiation of the Provisional Registration Security Act, there have been raised many issues theoretically including legal composition, scope and notification method of the Provisional Registration Security Act, problems between provisional registration security and settlement prior to filing and recognizing credibility of the provisional registration by the confirmed registration.

In reality, as the Provisional Registration Security Act got enforced, various advantages using the provisional registration security as security for an obligation by obligees in the private financial market, the provisional registration security system has been scarcely used and it's true that there are legislational problems from the viewpoint of the purport of the Provisional Registration Security Act. Based on these, this paper reviews problems in the Provisional Registration Security Act and has a purpose of researching improvements related to solving, complementing these defects and need for protecting obligators.

To expand logics, this paper mainly conducted research on papers and complemented comparative legal researches and case studies if needed. The first chapter describes the purpose and scope of this research. The second chapter takes a close look at jurisprudence on similar systems. The third chapter compares provisional registration security acts in Korea and Japan. The fourth chapters reviews the problems in the Provisional Registration Security Act and proposes solutions. The fifth chapter is the conclusion and summarizes improvements in the Provisional Registration Security Act from the research results.

The major problems in the Provisional Registration Security Act from the analytical point of view are as follows: First, the Provisional Registration Security Act shall regulate not only the provisional registration security, but also transfer security and sales security. Second, in the aspect of limiting collateralized bonds according to the Article 1 and the Item 1, Article 2 of the Provisional Registration Security Act, the Provisional Registration Security Act will mainly apply to the provisional registration security for bond collateral for money and loans for consumption.

However, it is reasonable that the Provisional Registration Security Act applies to reservation on the payment in substitutes to collateralize debt not generated by loans for consumption. Third, except special regulation on the Provisional Registration Security Act for applying encumbrances, all the regulations including the civil laws on encumbrances and the civil execution act shall be analogized and applied unless it is against the substance of the provisional registration security rights.

Fourth, it is reasonable to interpret '10 years after from the expiration of the acquittal' or 'when a third party with good faith acquires proprietary rights' in the Article 11 of the Provisional Registration Security Act as the liquidation expiration or until the receipt of liquidation respectively. Fifth, the way of notifying the Provisional Registration Security Act shall not be considered as a legislational complementary, but it is reasonable to consider as interpretation, that is, the burden of proof.

Sixth, if there is an analytical limit on settlement prior to filing, it is more desirable to set a regulation which nullifies efficiency of the settlement prior to filing on the Provisional Registration Security Act actively for the legislational purpose of the Provisional Registration Security Act and it may prevent obligators from extortion by the obligees to some extent. It is desirable for the Provisional Registration Security Act to protect obligators from extortion by obligees. However, if the irregular collateral is strictly regulated like the typical collateral system, the obligees will not provide financial conveniences and the obligators will lose their financial conveniences.

Therefore, this paper will propose several legislational theories. First, there is a need to prepare measures to more easily initiate private execution of the provisional registration security like assigning and collateralizing movables and reserving proprietary rights as a plan to invigorate the provisional registration security reflecting the Korean economic situation.

Second, because the auction priority in the Article 14 of the Provisional Registration Security Act makes obligator protection and obligees other than the provisional registration security holders take procedures more easily, it may impede the provisional registration security system, therefore, it is necessary to reasonably limit the auction priority system. When the Provisional Registration Security Act is amended and complemented to become a reasonable and balanced real rights granted by way of security among stakeholders including obligees, obligators and third parties, the provisional registration security system will become invigorated.