豫告登記에 관한 硏究 = (A) Study on the Preannounced Registration

부동산 등기부에 소송 사실을 공시하는 예고등기를 연구했다.

In the case of a preannounced registration, the court, where the suit is filed, should ① exercise its authority and commission a registry office (Real Estate Registration Law Article. 39) to make an entry of the filed suit to the registry book and ② warn the 3rd party for the purpose of making transaction safe, when ① an existing registration is invalid, ② a registration has to be canceled due to its own cause or ③ a suit has been filed to reinstate a canceled registration due to invalidity of the cancellation (Real Estate Registration Law Article. 4). The preannounced registration gives a critical warning to those engaged in transaction.

In Korea a formalism-centered attitude is applied to changes in real estate real rights and a public confidence is not accepted in registration, which has led to many mismatches between registration and real entity and many disadvantages to the bona-fide third party. The preannounced registration is one of measures designed to address the issues, whose effectiveness however is still in question. People have worked hard on improving the preannounced registration with theories and judicial precedents. The Supreme Court is also using regulations and notification for the better system.

However, it still has a long way to go before fully protecting the bona-fide third party and rightful persons in a fair and balanced manner. Considering this, I analyzed requirements, effects and process of the preannounced registration, and then reviewed its issues and solutions. The order of this treatise is as follows. 1st chapter: purpose of the research on the preannounced registration; highlighting and scooping of the issues. 2nd chapter: Regarding the preannounced registration of Real Estate Registration Law, 1st paragraph - its meaning, nature, history and legislation; 2nd paragraph - its requirements in detail; 3rd paragraph ?

an opposing power over its validity, effect of right preservation, problems with assumed validity, its relations with No Disposal provisional disposition, status of the plaintiff, cancellation of registration after the preannounced registration is done, its existence and defects of contract objects; 4th paragraph ? procedure of the preannounced registration (commission & enforcement procedures) & its cancellation (cancellation by commission or by authority); National liability and the preannounced registration systems in overlooking a preannounced registration commission. 3rd chapter: Regarding issues of the preannounced registration, 1st paragraph ? its general issues; 2nd paragraph ?

as for problems with a preannounced registration commission, 1) its abuse in following cases ① an alternative to No Disposal provisional disposition in the preannounced registration commission, ② false grounds argued for the preannounced registration commission, ③ no recognition of a stakeholder as a dependant in filing a cancellation suit, 2) a suit filed to reinstate a bona fide registered right; 3rd paragraph ? ① ways to cancel an execution-interfering preannounced registration (ex: mortgage enforcement) and ② preannounced registration process simplification. 4th chapter: Regarding improvement of the preannounced registration, 1st paragraph ? general issues; 2nd paragraph ?

nullification of the preannounced registration and back-up measures regarding issues of whether the preannounced registration needs to be maintained or not; 3rd paragraph ? as a way of how to improve the preannounced registration for its continuous existence, ① procedure of a preannounced registration commission & cancellation ② an arbitration system introduced when an auction and a registration cancellation suit are taking place at the same time. 5th chapter: conclusion.

목차 제1장 序論 = 1 제1절 硏究의 目的 = 1 제2절 問題點 = 5 제3절 硏究의 範圍와 方法 = 6 제2장 不動産登記法上 豫告登記 = 8 제1절 豫告登記制度 = 8 1. 豫告登記의 意義와 性質 = 8 가. 豫告登記의 制度的 趣旨 = 8 나. 豫告登記의 性質 = 9 2. 豫告登記制度의 沿革 = 9 3. 豫告登記制度의 立法例 = 10 가. 日本의 立法例 = 10 나. 獨逸의 立法例 = 11 다. 프랑스의 立法例 = 12 라. 日本 舊民法의 立法例 = 13 제2절 豫告登記의 要件 = 16 1. 登記原因의 無效 또는 取消에 의한 登記의 抹消 또는 回復의訴提起 = 16 가. 登記原因의 無效 또는 取消 = 16 (1) 登記原因 = 16 (2) 無效 또는 取消 = 17 나. 登記의 抹消 또는 回復의 訴提起 = 18 (1) 抹消 또는 回復의 訴의 種類 = 18 (2) 抹消 또는 回復의 對象이 되는 登記의 範圍 = 22 2. 無效 또는 取消로써 善意의 第3者에게 對抗할 수 있는 경우 = 25 가. 善意의 第3者에게 對抗할 수 있는 無效인 경우 = 25 나. 善意의 제3자에게 對抗할 수 있는 取消인 경우 = 26 다. 登記의 實質的인 原因行爲가 不成立 또는 不存在한 경우 = 26 라. 登記原因인 契約이 解除된 경우 = 27 마. 破産法에 의한 否認의 登記請求의 訴가 提起된 경우 = 28 바. 會社整理法에 의한 否認의 登記請求의 訴가 提起된 경우 = 28 제3절 豫告登記의 效力 = 30 1. 序 = 30 2. 對抗力의 問題 = 31 3. 權利保全의 效力의 有無 = 31 4. 推定的 效力의 問題 = 33 5. 處分禁止假處分