「假登記擔保 등에 관한 法律」의 主要內容과 法理的 諸問題 = The main contents and legal problems of the Rules concerning the Provisional Registration Security

가등기담보 법률의 주요 내용과 법리적 쟁점을 검토했다.

The Provisional Registration Security has been existed with the form of abnormal way of security in current practices of the business world. It was thought that in those days of establishing the Rules concerning the Provisional Registration Security, the regulation of reconciliation before instituting a suit was more desirable than establishing it. Because there were provisions like the articles 607 and 608 of the Korean Civil Code on the loans of consumption. And there were negative opinions in establishing it for the worry that it may decrease the utilization of mortage.

But with the establishment of the Rules concerning the Provisional Registration Security, considerable questions disputed for a long time came to a settlement legislatively.

The Rules concerning the Provisional Registration Security has the character of procedural law to embody the articles 607 and 608 of the Korean Civil Code and has the merit that plays a role of regulating a legal relationship reasonably between a person with the right of the Provisional Registration Security and the posterior creditors in case that the person with the right of the Provisional Registration Security executes a security right, Nevertheless, it leaves much to be disputed out of the person concerned because there are many problems in the legalistic sides as pointed out in the main discourse of this study and not provisions about the method of evaluating the objectives and regulating unfair evaluation.

Besides, it imposes a clearing duty on a person with the right of the Provisional Registration Security and the clearing procedure is very intricate and so it comes to be difficult for a security holder to feel the contentment of credit with a simple method as before. And as a result that the Rules concerning the Provisional Registration Security attached weight to negative sides of the Provisional Registration Security in the legislative process and tried to protect the rights of a debtor and posterior creditors too much, the prompt and simple method of credit revulsion which was good points of the Provisional Registration Security was restricted greatly.

So a vicious circle is expected that the utilization of this mechanism has a tendency to be evaded in private finance and a new abnormal way of security should be created by a creditor. Therefore it is necessary to find out the method that both a creditor and a debtor are satisfied simultaneously, while utilizing the simple method of credit revulsion which was a character of the past Provisional Registration Security.

As pointed out in the main discourse of the study, the proper supplement counterplan should be devised legislatively on several problems in the legalistic sides of the Rules concerning the Provisional Registration Security as well as the reconciliation before instituting a suit and so a Right of the Provisional Registration Security should be developed into an independent right of security.

Ⅰ. 序 論 Ⅱ. 假登記擔保法의 主要內容 1. 本法의 適用範圍 2. 債權者의 擔保權實行通知義務와 淸算期間의 法定 3. 淸算金의 支給과 所有權의 取得 4. 債權者와 後順位權利者 등과의 法律關係調整 5. 法定地上權의 認定 6. 債務者 등의 登記抹消請求權 7. 假登記擔保權者와 다른 債權者와의 利害關係調整 8. 競賣로 인한 假登記擔保權의 消滅 9. 競賣 등에 관한 特則 10. 破産 등의 경우의 擔保假登記 Ⅲ. 假登記擔保法의 法理的 諸問題 1. 假登記擔保의 法理構成 2. 假登記擔保權의 公示 3. 登記의 公信力 4. 提訴前和解의 規則不在 5. 淸算金의 算定時期 6. 債務者 등의 擔保假登記 抹消請求權 Ⅳ. 結 論