가등기담보에 관한 고찰

가등기담보의 법적 성격과 담보권 실행을 고찰했다.

I. (1) The Provisional Registration Security is a security created by provisional registration that retains the transfer right of a property title (e.s. real estate or movalles) to the creditor. The afore-mentioned creditor reserves the right to demand the return of credit and, at the same time, is vested with a real right to have his credit recovered by disposing the object of provisional registration security. “Promise-to-return-by-substitude” is usually utilized in the legal formality. (2) The Provisional Registration Security, as presented above, has the following characteristics : i) It is defferent from the real right, which derives from the provision in the civil code.

The provisional registration can be probed in comparison with the original registration, and the former distinguishes itself from "Yangdodambo" in which the transfer of title does not come into effect at the outset of contract. ii) It belongs to the non-typical security method. iii) It is likely to be used only for the convenience of creditor and for the effect of obtaining ownership. Consequently, it may cause an adverse result on the part of deltor. (3) The Civil code had newly provided the articles of 607 and 608. Furthermore the Supreme Court already reasonned that those articles might be applicable to the Provisional Registration Security.

In the above Supreme Court judgement, creditors in the provisional registration security is reguested to settle his credit and to return the remainder to deltors after having disposed or estimated the security object. II. (1) On the legal structure of provisional registration security, the traditionally prevelant opinion and judicial precedents share the rationale which is contructed in the form of trustee-ship. Admitting the above view, it follows that the transferee would effectively obtain the right of property, even though he were in good or bad faith when the obligee disposes the security object to the third party before the due date of payment.

In addition the obligor can not effectively argue the ralidity of execution when any third party of the original obligee executes the security object. The unreasonableness in the above traditional view which is stemming from the extreme stress of legal formality has been disclosed through the reflection of the intrinsic nature of provisional registration security. (2) Nowadays a new opinion trend reconstructs the legal structure of provisional registration security as a kind of real right that is granted by the custom of security, not by the civil-code.

It seems reasonable to reconstruct a new theory regarding the Provisional Registration Security as a kind of special security measure and as a quasi real right granted by the custom of security. By doing so, we can avoid the negative and superficial consequence coming from the traditional conception of ownership. At the same time, we can presure the real function of security. (3) According to the above view, I have explained "security-constract" and "public notification" for establishment of security. Classifying the internal and the exteral effects.

I have illustrated the scope effectuated by the effect of security, the enforcement of provisional registration security, and the relation between usage and profits. For the external effect, I've presecuted the participant problem in auction procedures, disseuting claim by the third priry and the tax-related matters. III. The provisional registration security should be fully activated by the public notice as it is a kind of real right and should be complemented with the method of public-notification. The creditor should not exercise the transference, such as the ownership disposal and the title change.

The true value of provisional registration security should live in protecting the deltor by controlling the creditors' advantage of the legal pretext. It is quite necessary to establish the legal foundations in the form of a special law for the provisional registration security.