假登記擔保制度에 관한 考察

가등기담보제도의 성립 배경과 법적 구조를 고찰했다.

Origcnally the Provisional Registration was inacted for preserving the rank of registration-application. But runing counter to the original purpose, this system had become to the principal irregular security-system by the claim of the General-transactions-world which had made new irregular security-system over the regular scurity-system in civil law. It is to make a precontract to pay in sufstitutes or the buy and sell, and them to register the preservation of the right of claims for property transfer provisionally on the basis of the contract.

Moreover, if the procedure of reconsiliation before institutins a suit is clarified in the contract, the obligee can take the procedure to transfer property immediately ofter the pay-day is over, with the result that obligee unlawfully seizes the ofject real-estate for more valuafle than the principal and interest. The articles 607 and 608 of the civil law stipulate the return of the borrowed ofject as follow ; if the borrower has promised to substitute any other property shall not exceed the aggreegate valu of the original amount borrowed plus the interest thereupon.

And any agvreement entered by the parties, contrary to the provisions, which is prejudicial to the borrower is not valid even if claimed as a "redemption" or in any othe legal remedy. However, the supre count is of the opinion that if there is no reason for retrial, the violation of the enforceable provision also canrcot be the reason for denying the effect of a decision, because of the established effect which the protocol of reconsiliation befor suit has. In this situation, the rules concerning the provisional registration the right and obligations among the obligee, the oliger parties. In this treatise, I have tried to researeh into the rights and obligations of the three parties.

First, as for the obligee, the provisional registration security was no more than a preservation of the priority in the right of clains for property-transfer in the past, but now it gives him both the precedencein in repayment, and the right of clams, for public sale as the same real right as mortgage. Second, as for the obliger, he has a clearing system which requires the obligee to notify the amount to be payed off, ather, assessing the secuvity if he is to excute the secuvity right.

Besides be has two menth to spare ofter the notice arrives, and the right to claim simultaneous fulfilment in case of the transfer of the right to a real estate, And even if the procedure of the property-transfer of a security has been finished, of can claim (as longas for 10 years) to erase until the clearing procedure is completed. Third, the interested paries can have notice of the execution of the security right, and the pasterior obligees can have the opportunity for securing his share in paying off. And they have the right to clain for public Aale durig the clearing period ever if the payment is not due.

Although the rules concerning the provisional registration security has some problems, it does provide some adeguate regulations about the right and obligations among the parties concerned. Therefore, I expect to make practical applications of the provisional registration security system more than ever.