부동산 경매시 매각으로 인하여 매수인이 인수하는 등기부상의 권리에 관한 연구

부동산 경매에서 매수인이 인수하는 등기상 권리를 연구했다.

영문초록:Unless an exhaustive analysis is made on real property for auction, it may led both real consumer wanting to own the home and the investor to fail in investment in real property for auction. The analysis of the real property for auction may be divided into the followings: title analysis made to see whether there is any defect in the relationship of title on real estate for auction; real property analysis made to see whether there is any defect in the use and development of real estate for auction; profitability analysis made to see how profit will occur from the amount invested in real property for auction; and the like.

Among other things, we cannot overemphasize the importance of title analysis too much. Therefore, this study attempted to analyze the title to the real property that the buyer should take over due to the successful bid able to be said to be the core of title analysis and the title that ought to become extinct due to the successful bid stipulated in Subsec. 3 of Sec.2 of the Civil Enforcement Law and Subsec. 1 of Sec. 12 of the Provisional Registration Security law.

For this purpose, it sought to address the extinction-based right, the right of dividing extinction and takeover in case the contents of those rights and several rights exist on the real property, at the practical level, and consider the safe and successful title analysis of real property for auction. An attempt was made to summarize them as follows:First, the first step of title analysis is to find the extinction-based right.

It is the right dividing the rights to be taken over and the right to be extinct on the register, and the first created rights include the fixed collateral right, provisional attachment registration, provisional registration of security, compulsory auction entry registration. The term of extinction-based right can not be found in the provisions of laws and judicial precedents, but there is the provision of 'become extinct due to sale' Subsections 2, 3 and 4 of Sec. 91 of the Civil Enforcement Law. The extinction-based right is used for the purpose of discoursing title analysis by borrowing the terms of extinction from the provision.

There is the major principle of the court that requires that all real rights granted by way of security and those similar rights be made extinct when the ownership registration is transferred to a new buyer due to the termination of the auction. The first-priority right of real rights granted by way of security which become extinct becomes the extinction-based right. the reason why the rights of lower priority than the extinction-based right ought to become extinct is that the value of security secured by the rightful person of highest priority should be guaranteed.

In the Chonse right, there are several views as to whether it becomes an extinction-based right, but the Civil Enforcement Law has the provisory clause that the Chonse right does not become extinct if it has the opposing power. In this case, it is required that the Chonse right becomes extinct if the rightful person of Chonse right requires compensation. From this perspective, it is thought that it is valid to interpret the presence of extinction of the Chonse right according to individual cases.Second, there is an analysis of the rights that the buyer should take over as a result of the successful bid.

The rights registered earlier than the extinction-based right do not become extinct do still remain though the ownership right is transferred to a new buyer, who cannot be said to have a complete ownership right to the real property unless the new buyer takes over those earlier rights. The Civil Enforcement Law is adopting the principle of extinction in case of the real rights granted by means of security and the principle of takeover in case of usufructurary real rights.

The rights that do not become extinct and are transferred to a new buyer include earlier-priority usufructurary real rights(superficies, easement, Chonse right), lease right registration of early priority, provisional attachment registration to the former owner, provisional registration on integrity of early priority, resale registration, provisional disposition registration of earlier priority, advance-notice registration(taken over regardless of priority).

On the other hand, the rights the buyer should take over of the right unexpressed on the register may include the lessee having the opposing power with higher priority than the extinction-based right, liens, legal superficies, tomb base right. In this context, the most noteworthy point is that lien, legal superficies, tomb base right and the like should not be judged according to higher or lower priority than the extinction-based right but the buyer should take over them if established as a result of title analysis.

As mentioned above, this study attempted to analyse the rights that the buyer should take over as a result of the successful bid and the extinction-based right to the real property for auction. And it sought to summarize the plan to approach more efficient and safer investment in real property for auction at the practical level through the analysis of court decisions and the cases of the successful bid.In conclusion, the investment in real property for auction would become the absolutely safe means of financial technology if good title analysis is made on the real property for auction, especially if perfect analysis is made on the rights that the buyer should take over