假登記 擔保에 관한 硏究

부동산 가등기담보의 제도와 실무상 활용을 연구했다.

It is a well-known fact that provisional registration security is a security mechanism in the form of provisional registration. It was originally used as the form of provisional registration security accompanying a promise of return by substitutes or a promise of sales, but it has been gradually developed to form a new independent security mechanism. In current practies in the business world, provisional registration security is usually exploited to avoid the procedural difficulties of the typical security mechanism, i.e. mortgage.

However, it is likely to be used only for the convenience of creditors and for the effect of obtaining ownership; as a result it may cause adverse effects on debtors. Therefore the purpose of this article is to define the concept of provisional registration security and to conduct a proper evaluation through legal construction and futremore to provide a theory of registration.

First, provisional registration security is defined as follows : It is a kind of security mechanism for the satisfaction of monetary indebtedness by making provisional registration with an agreement that in case of any default of indebteness the creditor may obtain the ownership Of the underlying assets in accordance with the promise to return by substitutes or the promise of sales. The legal construction is as follows: Avoiding the negative and superficial construction based on the traditional idea of ownership and looking directly at the real function as a security, it is deemed resonable to build up a new theory regarding provisional registration security as a kind of special security.

Second, the contract of establishment of provisional registration security shall be identified as a kind of action creating real rights. Related to the extinction of provisional registration security there exists a problem regarding the time to exercise the right to recovery. The conclusion is as follows: The problem may arise out of two different cases; the first one is liquidation by transfer and the second is liquidation by disposition. In the case of the former, the time of extinction will be when the liquidated amount is paid; in the case of the latter , the main registration in the name of a third person will be completed.

Third, there may arise problems regarding the effects of provisional registration security between the contract parties. 1. Regarding the extent of secured indebtedness, the cost of enforcement should be included in addition to the principal, interest liquidated damages and penalty. 2. Regarding the right to use the secured objects, given that the theories and case laws have accepted legal superficies created by customs, legal superficies will be easily recognized. 3. Regarding the exercise of the right of provisional registrations security, in case of liquidation, the duty of liquidation should be granted and nonliquidation contracts or postliquidation contracts should have no effect.

Regarding the method of liquidation, liquidation by transfer is thought of a principal method and the duty of a security holder to pay the liquidation amount after the liquidation process is to be simultaneously performed with the duty of a debtor and or establisher of security to complete the main registration. Persons who may have claims for the liquidated amount shall be limited to debtors, establishers of security and a third person who has acquired the secured objects.

Fourth, regarding the external effects of provisional registration security, there exists on important problem in connection with the real estate auction, from the viewpoint of the treatment provisional registration security whether to allow the participation in auction procedure. It is not allowed under the existing laws (civil law); however, its existence as a seal security should be fully recognized and recommended. In such case it is also recommendable that persons with the right of provisional registration security participate in the auction procedure maintaining its state of provisional registration and claim preferential payment.

However, in case provisional registration security is considered as the real right of security, it will be appropriate not to be allowed, considering the reality of provisional registration security. But it may be recommendable to recognize exceptions in some cases to comply with actual demands. The second question is that whether it is possible to privately exercise provisional registration security rights excluding on-going auction procedures. According to the existing laws it is virtually impossible to prevent a person who has the right of provisional registration security from claimig main registration and entering court proceedings as on interested third party.

However, in case provisional registration security is considering as the real right of security, it will be appropriate not to be allowed, considering the realty of provisional registration security.