不動産讓渡擔保의 理論 再構成에 관한 硏究 = (A) study on the theory reconstruction of real estate mortgage transfer

부동산 양도담보의 이론과 법적 성격을 재구성했다.

Regarding security system, the typical real right security system which is stipulated according to our country's civil law is already available, however in actual real estate market, transfer security, which is rather non-typical, is widely used. Transfer security, in its broad sense, indicates the system that achieves the objective of credit advancement by transferring the property right that becomes the object of security.

There are two types of security, and one of them is transfer security that keeps credit advancement in the form of bond while credit giver holds the right to claim the refund, and in case debtor does not respond to it, the debtor is regarded as satisfied about the object.

Therefore, real estates transfer security refers to irregular or non-typical type of security with which after transferring the ownership of real estate, the object of bond security to creditor, if debtor does not perform the debt, creditor proceeds with liquidation procedure with the property right and receives prioritized reimbursement, however if debtor performs the debt, the transferred property right is restored to the original property right holder.

There has been social problem that such non-typical security caused unilateral deficit to debtor beyond the scope of debt, however it is true that most of the financial transactions among private parties other than financial organization are made through non-typical securities. The one most widely known among them is transfer security. To protect debtors(security creator) that unilaterally undergoes deficit, various theories have been proposed, and as an outcome, Act on Temporarily Registered Security etc that can control non-typical security was established.

After establishment of this Act, only protection of debtor was emphasized while the realities non-typical security can were neglected due to excessive control, and it came to a situation that creditors avoid utilization of this system. As a result, financial measures decreased for debtors as well. Later, precedents and theories say that it is the excessive profits to acquire debtor,s ownership over mortgaged properties beyond mortgaga security and that insist to protect rights or debtors as mortgager.

As a result of the discussion of the various theorirs, authorities have made the rules, 'the law of provisional registration of mortgaga' and 'the law of properties ownership title registration', to control the 'abnormal mortgaga'. Therefore, the problems are more complicated. The root of the problem is legal character of the mortgage. Due to the inconsistency of the purpose and the from, it is very difficult to focus on real rights granted by way of security for the purpose itseif or transfer of the ownership for the realization of the purpose.

The discussion about above mentioned issue is practical because it materially affects to the relationship among mortgagee, mortgager and the third parties. However, the side effects of 'the law of provisional registration of mortgage' is that strict imposing of legal control ignores the nature or merits of 'abnormal mortgaga' to protect the debtor and then the creditor avoids to use the system and it becomes the useless law. Financing methods for debtors are decreased. Consequently, mortgaga is not any longer contribute to the social and economic aspects at least to real estates market.

According to mentioned before, it shall be the practical study to construct the legal theory of 'mortgaga' and resolved the recognized problems with following methods. First, definite the mortgaga and review the related laws to make constructive control system. Furthermore, categorize the precedent regards to mortgaga law and then measure the deviation between trust behavior theory which provides theoretical basis of the mortgaga.

Thus, this paper intends to make overall arrangement of precedent theories of transfer security and diagnose the conformity of its legal regulations by establishing the concept of transfer security and examining the theories to identify the legal mechanism of transfer security. Therefore, this paper pursues to propose direction of future discussions on recomposition of theories on real estates transfer security.

제1장 序論 = 1 제1절 硏究의 目的 = 1 제2절 硏究의 範圍와 方法 = 4 1. 硏究의 範圍 = 4 2. 硏究의 方法 = 5 제2장 讓渡擔保의 意義와 社會的 機能 = 7 제1절 讓渡擔保의 意義 = 7 1. 廣義의 讓渡擔保 = 10 2. 狹義의 讓渡擔保와 賣渡擔保 = 11 가. 基本的 差異點 = 11 나. 兩者의 判定基準 = 12 다. 兩者의 判別實益 = 15 제2절 不動産讓渡擔保의 類型 = 16 1. 弱한 讓渡擔保·强한 讓渡擔保 = 16 2. 流擔保型·精算型 = 17 3. 處分精算型·歸屬精算型 = 17 제3절 讓渡擔保의 社會的 機能 = 18 1. 優先辨濟節次와 資金融通의 便利 = 18 2. 財産權의 擔保化 = 19 3. 直接占有의 移轉 없는 動産擔保의 實現 = 20 제4절 不動産擔保와 還買機能 = 23 1. BGB上의 制度 = 23 2. 目的物로서의 讓渡擔保 = 24 3. 還買機能 = 26 4. 檢討 = 29 제3장 讓渡擔保의 歷史的 發展過程과 比較法的 考察 = 30 제1절 近代以前의 讓渡擔保制度 = 30 1. 로마法 = 30 가. 初期段階의 로마法 = 30 나. 所有權 移轉 方法 = 32 다. 物的 擔保制度 = 33 2. 게르만法 = 34 가. 初期段階의 게르만法 = 34 나. 第3者 保護機能 = 35 다. 擔保의 形態 = 37 3. BGB 立法時 抵當에 관한 論議 = 41 가. 占有質 原則의 維持 = 41 나. 安易한 信用設定利用의 制限 = 43 다. 立法者에 의한 讓渡擔保의 黙認 = 44 4. 日本의 不動産讓渡擔保 = 46 가. 不動産擔保의 權利移轉型 出現 = 46 나. 信託行爲 理論 導入 = 48