假登記擔保制度에 관한 硏究 : 運營上의 問題點을 中心으로

가등기담보제도의 운영상 문제점을 검토했다.

The civil law has mortgage system in it in order to secure credit, which enables one to raise funds in security for a certain property. However this system is not prevailing because of its complexity and expenses in its operation. Therefore the provisional registration security system is prevailing in private financial transaction, which is not expressed in the positive civil act. Related the above, the objective of this study consists in making the system more efficient socially and economically through analyzing the legal logic in the act of provisional registration security system and problems in its operation, and then presenting the strategies for improving them.

A provisional registration security is a kind of informal security measure that is used to secure credit when the discharge of obligation has not been accomplished in future by promising to obtain the property right of an object through precontracting the payments in substitutes or purchase about the object and then completing provisional registration about the right of claim for property right transfer. And this system has been used to avoid the complexity of formal security system operation. But in reality, it is true that the system is being abused as the means of creditors' convenience pursuit or their property right obtaining and in consequence debtors are suffering the economic damage.

Because the main topic on the anomalistic security has been put on protecting debtors from creditors' arbitrariness during the past, the control to this system has been strengthened, and this consequently resulted in creditors' abhorrence in giving finance, and futhermore that made debtors lose chances to get fince with ease. Therefore the new strategy that attains the goals of the system naturally by harmonizing the interests between creditors, debtors and a third person should be devised. For the purpose of getting this target, the followings should be realized.

First, the transfer of legal logic in recognition about the provisional registration security should be performed from that the security is just passive and nominal into that it has to be treated as a specific real rights on security by respecting for its substance. Second, the rightful person for provisional registration should be in the position of substantial law as a precontractor, and the person who has completed the fixed registration on provisional one should be treated as a rightful assignee on transfer security. Third, a sure advance in case law should be made lest another anomalistic security system should emerge.

Lastly, the financial system and the provisional registration security system should be corresponded each other so as to attain its goals in full degree.