우리나라 부동산경매제도의 변천과정과 특성에 관한 연구 = A study on the transition process and characteristics of real estate auction system in Korea

다국어 초록 (Multilingual Abstract)

This study aimed to examine the process and characteristics of change in the real estate auction policy of Korea over approximately 100 years, from 1912 during the Japanese Occupation, through independence and up to 2013, dividing this term into periods and taking on the historical perspective of the annals of legislation, and, regarding the contradictory aspects of the policy discovered, examine their policy implications and identify their characteristics. As for the division of the term into periods, the means for doing so employed in existing studies similar to this study were borrowed in part, using the time of legislation and revision of the Enforcement Act as the standard. The term was divided into four periods, namely 1) transplant 2) adoption and establishment 3) development 4) transition and maintenance.
The significance of the results of the present study's analyses, summarized according to period, is as follows.
First, the transition period was a dark age where progress of auction policy became stagnant due to the Japanese occupation. After Japan's forced annexation of Korea, and with Korea stripped of sovereignty, the Japanese real estate auction policy was forced upon the country through the Decree on Civil Matters on Joseon, remaining place for approximately 50 years until early 1962. The auction policy of Japan continued to influence the auction policy legislation process of Korea into the 1960s, even after independence.
Second, in the adoption and establishment phase, the foundation was laid with a new Korean auction policy after independence. As, during this period, legislative powers were regained from the Japanese Empire, the period saw the most active legislation of real estate auction policies suiting our conditions and circumstances. Specifically, during this period, many policies including the forced auction and real estate real right policies in 1960, the random auction policy in 1962, the housing lease policy in 1981, and the acknowledgment of priority repayment of usufructuary real rights in 1984, accelerating the establishment of the real estate auction policy.
Third, the development period saw groundbreaking improvements in the real estate auction policy, leading to its blossoming. The greatest change seen during this period was the repeal of the Auction Act, unifying the real estate auction policy, which had been divided between two acts for approximately 30 years, under the Enforcement Act. Newly adopted policies during this time were the policy for current status surveys in sale procedure, the policy for preparation of article specifications, and the policy for contingency reportees on purchases. The policy for appointed bidding times was enactd on May 11, 1993, signaling the end of the age of the asking price auction policy, which had remained in place for approximately 30 years.
Fourth, during the transition and maintenance phase, the auction policy was fundamentally reviewed and improved, creating the momentum for a major shift. This period was characterized not only by the adoption and improvement of new auction policy, but by the most active legislation ever of extensive and groundbreaking auction policy. The most representative legislation was the separation of the enforcement policy in the Civil Procedure Act, which had existed in this form for approximately 40 years, from the same act into the independent Civil Execution Act. The policy was now provided for by a special law whose independence is guaranteed. Others include the enactment of the commercial building lease protection policy in 2002, the term auction policy enacted in 2004, the repeal of the registration of advance notice policy in 2011, and the partial repeal of the lien policy, preliminary announcement of which was made in 2013.
The implications of the results of the analyses conducted in the present study are as follow.
First, the enacting of coordinating legislation when auctions and public auctions for real estate are in competition may be the only way to prevent the collision of laws on compulsory execution and laws on national taxation.
Second, regarding the issue of the validity of seizures pursuant to a decision by auction courts to begin forced auction, in order to realize the objective of sale in real estate auctions, it is thought that legislation adopting process-relative-nullity - according to the purport of seizure to restrict disposition - is also desirable.
Third, as for distribution in sale procedure, in order to resolve the disadvantages of equal distribution and protect execution creditors, legislative consideration of priority distribution or group priority distribution like Germany or Switzerland must be made in the future.
Fourth, another method, regarding the execution of the appointed time bidding policy, may be to seek a solution to the problems having materialized during the execution of the policy, or, seeing as the public suffers much damage and inconvenience participating in bidding, or to review whether the policy should remain in place or not.
Fifth, as, due to the cap on the amount of the commercial lease deposit protected in real estate auctions, commercial lessees suffer large damages, it is desirable that the repeal of the cap is examined.
Sixth, regarding whether to maintain or repeal the line policy, which is acting as an obstacle to auctions, the following means of legislative progress are proposed.
① Legislation must ensure that lien rights on unregistered real estate cannot be exercised. ② In cases where the secured debt regarding lien rights is bona fide, means for mortgage registration as per court order must be sought. ③ Improvements must be made to guarantee acquisition of complete rights regarding the object of auction by the purchaser through payment of the proceeds from sale only, by adopting the principle of extinction in real estate auction procedure.

목차 (Table of Contents)

• 제1장 서 론 1
• 제1절 연구의 배경 및 목적 1
• 제2절 연구의 방법 및 범위 4
• 제2장 부동산경매제도의 배경 7
• 제1절 부동산경매제도의 개념 7
• 1. 부동산경매의 개념 및 법적 성질 7
• 2. 부동산경매제도의 유형 11
• 제2절 부동산경매의 매각방식 및 압류의 효력 16
• 1. 부동산경매의 매각방식 16
• 2. 부동산압류의 효력 19
• 제3절 외국 부동산경매제도와의 비교 21
• 1. 대륙법계와 영미법계의 차이점 21
• 2. 대륙법계의 경매제도 23
• 1) 일본의 경매제도 23
• 2) 독일의 경매제도 31
• 3. 영미법계의 미국 경매제도 36
• 4. 시사점 42
• 제3장 선행연구 검토와 연구 방법 47
• 제1절 선행연구의 검토 47
• 제2절 연구 방법 58
• 1. 시대구분 58
• 2. 분석대상 60
• 3. 분석방법 62
• 제4장 부동산경매제도의 변천과정 64
• 제1절 의용기(1912.4.1.~1960.6.30.) 64
• 1. 일본 경매제도 의용(依用) 64
• 2. 일본 경매제도 의용 존속 66
• 제2절 도입・정착기(1960.7.1.~1990.8.31.) 67
• 1. 강제경매제도 67
• 2. 부동산물권제도 77
• 3. 임의경매제도 84
• 4. 주택임대차제도 87
• 5. 전세권제도 105
• 제3절 발전기(1990.9.1.~2002.6.30.) 108
• 1. 통합 강제집행(강제경매, 임의경매)제도 108
• 2. 경매실무상 기일입찰제 113
• 제4절 전환・유지기(2002.7.1.~2013.12.31.) 115
• 1. 민사집행제도 115
• 2. 상가건물임대차제도 128
• 3. 경매실무상 기간입찰제 139
• 4. 예고등기제도 140
• 5. 유치권제도 142
• 제5장 부동산경매제도의 변천 특성 147
• 제1절 의용기 : 일제강점기 경매제도의 의용과 침체 147
• 제2절 도입・정착기 : 한국적 경매제도의 탄생과 정착 148
• 제3절 발전기 : 강제집행제도의 통합과 발전 153
• 제4절 전환・유지기 : 민사집행제도의 독립과 대전환 156
• 제6장 결 론 165
• 제1절 연구 요약 165
• 제2절 시사점 168
• 제3절 향후 과제 172
• 참고문헌 173
• 〈부록 1〉 부동산경매제도의 변천과정 연표(1912~2013) 179
• 〈부록 2〉 현행 부동산경매 절차 흐름도 184
• ABSTRACT 185