假登記擔保에 관한 硏究

부동산 담보를 위한 가등기와 그 법적 효력을 연구했다.

The provisional registration is originally a preliminary registration for the conservation of order of registration. But in the practical money transaction a tendency has come to be found that the provisional registration is used as a security for loan in view of expected competency to acquire the ownership of real estate through the effect of provisional registration. Before the establishment of the law on provisional registration security, such a tendency become a kind of trade custom,and now the provisional registration performs a social function as a sort of security system for loan a loof from its original objective.

The transaction relationship by the provisional registration as security system for loan is so much different from that of original provisional registration that it is not proper to apply the concept and theory of original provisional registration to the provisional registration as security. And the decisions of Supreme Court maintain opinions that provisional registration in only a preliminary registration and that it only the effect to preserve the order of registration, but if the performer of the provisional registration transpers it to real registration,he can acquire retrospectively the real right from the date of his provisional registration.

But the provisional registration is so widely used as security for loan in the field of money transaction that the decision which is opposite the general tendency of transaction seems not to be proper. Our Civil Law prepares mortgage system as security for loan, and of course it is the best system for security for loan. But the people in general evade to use it as security on account of high cost and delay of process. That is the reason why the common people are willing to choose the provisional registration as security. However it is apt to be exploited for the convenience of creditors and it is misued by users as a means of compromise before presenting a case to the court.

So the laws on provisional registration security was established to eliminate such irrationabitics. Therefore the purpose of this dissertation is to define the concept of provisional registration security and to relate or to harmonize the theories and judical precedents before the estblishment of the law on provisional registration security with the aim and meaning of the establishment of the law.

목차 第一章 序論 = 1 I. 債權擔保制度의 槪觀 = 1 II. 硏究의 目的 = 3 III. 硏究의 方法 및 範圍 = 4 (1) 硏究의 方法 = 4 (2) 硏究의 範圍 = 4 第二章 假登記擔保의 法理構成 = 6 第一節 假登記擔保의 機能과 類型 = 6 I. 假登記擔保의 槪念 및 沿革 = 6 II. 社會的 作用 = 8 III. 假登記擔保의 類型 = 10 第二節 假登記擔保의 理論 = 13 I. 槪說 = 13 II. 判例理論의 形成 = 14 (1) 日本의 判例 = 14 (2) 우리나라의 判例 = 18 III. 假登記擔保의 法律的 性質 = 22 第3節 提訴前和解의 問題點 = 26 第三章 假登記擔保의 法律關係 = 31 第一節 假登記擔保의 設定 = 31 I. 設定契約 = 31 II. 目的物 = 32 III. 公示方法 = 33 IV. 被擔保債權 = 34 第二節 假登記擔保의 對內的 效力 = 35 I. 被擔保債權의 範圍 = 35 II. 目的物의 範圍 = 38 III. 物上代位 = 41 IV. 擔保目的物의 用益關係 = 42 (1) 假登記擔保權과 擔保目的物上의 用益權 = 42 (2) 法定地上權 = 42 V. 還受權 = 46 第三節 假登記擔保權의 實行 = 47 I. 擔保權 實行의 要件 = 47 II. 假登記擔保權 實行의 通知 = 49 III. 淸算 = 53 IV. 所有權의 取得 = 62 V. 利害關係人의 保護 = 63 VI. 債權者의 保護 = 65 第四節 假登記擔保의 對外的 效力 = 67 I. 假登記擔保와 競賣 = 67 II. 破産에 있어서 假登記擔保權利者의 地位 = 71 III. 國稅등과의 優先關係 = 72 第五節 假登記擔保權의