不動産競賣節次에 있어서 登記의 效力에 관한 硏究 = A Study on the Effect of Registrations in Proceedings of Official Auction of Immovables

부동산 경매절차에서 등기의 효력과 법률관계를 연구했다.

Among the objects of forcible execution, real estate has higher economic value, complicated legal relations, and many-sided sharp interests comparing to another property rights, So real estate auction system has the most important position in the civil affair execution proceedings and also has many problems in legally. Real estate registration has an important influence upon real estate auction proceedings. According to existing registrations, Auction proceedings can be discontinued or the auctioning rights can be produced, and there can be registrations that should be erased or transferred to the bidders. So the effects of them have an important meanings in real estate auction proceedings.

Real estate auction proceedings are civil affair execution proceedings with the object that an obligee attaches an obligor's property and he gets satisfactory proceeds from sale of the propertyas a substitute for his claim through the tender proceedings. There are two types of auctions; one is a forcible auction that be asked by obligation name on the monetary claim and the other is a voluntary auction for security right execution. The essential difference between the two is whether the obligation name is exist or not.

Heretofore, the proceedings of the former is proceeded by the Auction Act and that of the latter is proceeded by the Civil auction proceedings Act, because of this, there were some differences in auction procedures and the proprietary rights acquisition time. But in 1990. 1. 13. the Civil Proceedings Act was revised through the law No. 4201 including the abrogation of the Auction Act, and by the regulations affecting voluntary auction for security rights execution were provided in the Civil Proceedings Act volume 7 chapter 5, adapting the regulations affecting forcible Auction, they have no difference nowadays.

Moreover, since Real Estate Auction system have changed from a nominal quotation way to a bidding way at Seoul District Court in 1993. 5. 11., it has been expanded at every court all over the country. And it was a epochal structural improvement and development in real estate auction system. Meanwhile, the registration is a highly developed law-technical system that modern law contrived for the purpose of securing safety of realty transaction by publishing the realty conditions with a certain presentation so that they can be understood from the outside.

Under the law that adopts the real estate registration system as a way of publishing the realty change or the disposition restriction, when the court decides the auction opening, it should be written in the registerbook in order to protect the third parties and when the auction is closed, it should be canceled. So opening and close in the procedure are inevitably related to the registration. But most effects of various registrations have complicated and involved right relations. So in case of those auction procedures, the effect of registration contains complicated and a wide variety and the theories are frequently opposed to each other.

Therefore, I inspected the influences and effects of many kinds of real estate registration, laying stresses on the theories and precedents, and introduced the current concrete cases of the court and raised several points at issue. Then I suggested some improvement plans. Besides, the change from a nominal quotation way to a bidding way improved the problems of nominal quotation way and brought the public to participate the auction procedures easily. Despite of these systematic improvements, for rooting the real estimate bid system as the nations' reliable system, the court should give the informations about the objective's conditions right-relations to people who want to purchase.

But not only the public but also realestate agents don't have enough expert knowledge or ability to participate in the auction. What is more, they can not grasp the register right relations on the real estate in auction procedure. As I have stated above, the theories about the registry effect on the auction are opposed to each other, for the most relations are very complicated and involved and it's not easy to understand for the auctioneers as well as the public. But the auction court should try to offer the knowledge about the real estate right relations to the people who are concerned and who want to purchase.

These studies have been disregarded in the academic and practical field, for they belong to procedural law field. But they are more closely related to public life than the substantial law, so it should be the objects of constant study.

목차 第1章 序論 = 1 第1節 硏究의 目的 = 1 第2節 硏究의 範圍 = 3 第3節 硏究의 方法 = 5 第2章 外國의 立法例 = 8 第1節 美國 = 8 I. 不動産登記制度 = 8 1. 레코딩제도(recording system) = 9 2. 토렌스制度(Torrens system) = 10 II. 美國法上 擔保權實行節次 = 11 III. 美國의 强制執行節次 = 12 IV. 美國의 制度의 特徵 = 15 第2節 獨逸 = 15 I. 不動産擔保制度와 强制執行節次 = 16 II. 競賣節次에서 登記簿上 權利者의 地位 = 17 III. 債務者 救濟制度 = 18 IV. 賃貸借에 關聯된 問題 = 20 V. 不動産競賣節次와 登記 = 20 VI. 獨逸 制度의 特徵 = 22 第3節 日本 = 23 I. 不動産執行節次에서의 賣却方法 = 23 1. 競賣 = 24 2. 期日入札 = 25 3. 期間入札 = 26 4. 特別賣却 = 27 II. 競賣節次에서의 登記簿上의 權利 = 27 III. 擔保物權에 관한 登記와 競賣의 效力 = 28 IV. 不動産競賣節次에서의 賃借權 = 29 V. 日本 制度의 特徵 = 29 第3章 競賣絶次에서 甲區事項 登記의 效力 = 33 第1節 所有權에 관한 登記 = 33 I. 競賣節次와 所有權保存登記 = 33 1. 所有權保存登記가 可能한 不動産의 경우 = 33 2. 所有權保存登記가 不可能한 建物의 執行問題 = 35 II. 競賣節次와 所有權移轉登記 = 37 1. 强制競賣의 경우 = 38 2. 任意競賣의 경우 = 39 第2節 保全處分에 관한 登記 = 41 I. 假押留登記와 競賣節次 = 42 1. 假押留의 意義 = 42 2.