假登記擔保制度에 있어서 淸算金支給과 所有權 取得

가등기담보에서 청산금 지급과 부동산 소유권 취득 문제를 검토했다.

The system of provisional registration mortgage as an irregular mortgage has been used habitually in order to avoid the complicated procedure, delay and an enormous cost duly needed in the regular mortgage by many private moneylenders or borrowing and lending between individuals. But in this system there are a lot of disadvantageous conditions, such as buying and selling precontracts or preengagement of payment in substitutes, and so on for financially weak debtors. All sorts of such problems were examined and studied through various theses and several reform measures were suggested.

This thesis is to examine the apponinted period of clearing up debts on the payment of clearing up debts and acquisition of ownership conformed to provisional registration mortgage law, Article IV, and according to this consideration, to study the apponinted period of the price of real estate purposed mortgage as well as the appointed period of the amount of credit based on interpretation of legal principles of the text of the law and to make some suggestions. 1. The problem on the appointed period of clearing up debts.

About the appointed period of clearing up debts, the second Clause of Article IV of the same law prescribes that the clearing up debts should be paid in expired clearing period, and it shall become invalid to make a special contract to pay clearing up debts before clearing period [the same law, the fourth Clause of Article IV] In terms of the law it is clear that the appointed period of clearing up debts should be agreed after that of clearing up debts. But in the same law the first Clause of Article IV it says that creditor should pay the rest money subtracted from the price of real estate purposed mortgage at informed time.

Judging from this, it is clear that the appointed period of clearing up debts should be up to the standard of the notification of fulfilling mortgage right. On the other hand in a judical precedent the oppointed period of clearing up debts was arranged at the time of precontract. However the amount of credit by the regulations of the same law, the second Clause of Article IV, is fixed the limits of the credit regulated by the civil law Article 360.

Therefore as they count the amount of credit, the compensation for the loss [overdue interest] occurred by delayed term of repayment of credit should be regarded as the appointed period of clearing up debts is taken at the time of estimation for clearing up debts delayed the term of repayment because the appointed period of repayment should be included and counted until the term of estimation of repayment. Consequently it is right that not only the term of estimation of real estate purposed mortgage but also the period of estimation of credit should be counted after the period of repayment. 2.

The improvement device Therefore, as stated above, to eliminate a contradiction in terms of legal principles of the same law of Article III and IV, a part of these regulations of the law should be amended first, of the same law, the first Clause of Article III.

from 「…… the appraisal value of clearing up debts……」 to 「…… the estimated value of clearing up debts……」 Second, of the same law, the second Clause of Aryicle III from 「…… the appraisal value of real estate purposed mortgage……」 to 「…… the estimated value of real estate purposed mortgage……」 third, of the same law, the first Clause of Article IV from 「…… in the regulation of the first Clause of Article III, the value of real estate purposed mortgage at the time of notification……」 to 「…… the appraisal value of real estate purposed mortgage after the period of repayment……」

목차 I. 序論 = 1 A. 硏究의 目的 = 1 B. 硏究의 範圍 및 方法 = 2 II. 假登記擔保의 槪念 및 名國의 立法例 = 3 A. 假登記擔保의 槪念 = 3 가. 假登記擔保의 意義 = 3 나. 假登記擔保의 社會的 作用 = 4 다. 假登記擔保의 性質 = 7 B. 假登記擔保의 立法例 = 10 가. 獨逸 = 10 나. 스위스 = 11 다. 日本 = 12 라. 우리나라 = 12 마. 日本의 「假登記擔保契約에 관한 法律과 우리나라法과의 差異」 = 14 III. 淸算金의 支給과 所者權의 取得 = 15 A. 序說 = 15 B. 淸算金의 算定 = 17 C. 淸算金 請求權者 = 20 D. 所有權의 取得과 本登記의 請求 = 24 가. 所有權의 取得 = 24 (1) 所有權의 特別效力 要件 = 25 (2) 所有權取得의 時期 = 26 (3) 第三者의 善意取得 = 27 (4) 淸算金의 다툼과 假處分 = 28 나. 本登記의 請求 = 28 다. 本登記의 節次 = 29 라. 本登記의 實行方法 = 32 마. 本登記의 後順位登記의 抹消 = 33 바. 本登記의 先順位登記와의 關係 = 33 E. 淸算金의 支給債務와 同時履行의 抗辯 = 33 가. 民法 第536條 規定의 準用 = 33 나. 淸算金 支給債務의 發生과 負擔 = 34 다. 第三者에 의한 抗辯權의 援用問題 = 36 라. 擔保目的不動産의 滅失과 淸算金의 支給債務의 存續問題 = 37 F. 債務者등에게 不利한 特約 = 38 가. 無效의 原則과 例外 = 38 나. 不利한 特約의 類型등 = 38 다. 處分淸算型의 特約問題 = 40 IV. 結論 = 42 A. 債權額算定의 時期問題 = 42 B.