假登記 擔保에 관한 硏究 = (A) Study on the Provisional Registration as Security for Loan

다국어 초록 (Multilingual Abstract)

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.
Such a tendency became a kind of trade custom, and n o w the provisional registration performs a social function as a sort of security system for loan aloof 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 pro-provisional registration to the provisional registration as security.
I have researchers the concerto contents of the transaction relationship by the provisional registration which is common in the loan trade through the method of enquete.
The conclusin of the enquete is that the provisional registration is widely utilized as secularity for loan with the system of reconciliation by the judge before trial.
Yet the decision's of Supreme Court maintain opinions that the provisional registration is only a preliminary registration and that it has only the effect to preserve the order of registration, but if the performer of the provisional registration transfers it to real registration he can acquire retropectively the real right from the date of his provisional registration.
But as described above, the provisional regrstration is so widely used as security for loan in the field of money transaction that the decision which is opposite the general 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 at as security on account of high cost and delay of process. That is the reason why the common people are wi1 ling to choose the provisional registration as security.
So I think it is proper to deal the provisional registration as security real right in customary law, and then we can properly regulate the interests of parties concerned such as creditors, debtors and the third acquisitors of the property.
It is not impossible to interpret the provisional registration as security real right even under the existing civil law.
But it is hard to deal the provisional registration as security in the field of the law of registration on real estate, civil procedure law, auction law and the law of national tax collection, as the provisional regisration is nothing but a preliminary registration under those laws.
The provisional registration which has mere function to preserve the order of registration in the sphere of those laws changes retrospectively int the powerful security real right when the regular registration is finished: that shows obvious inadquacy in the practice of law.
It is the conclusion of this paper that a new statute for the security real right by the provisional registration must be stipulated and the laws concerned should be revised so as to meet the up-to-date need for security system for loan.

목차 (Table of Contents)

• 目次 = 1
• Ⅰ. 序論 = 5
• Ⅱ. 假登記의 意義및 社會的作用 = 7
• 1. 意義 = 7
• 2. 社會的作用 = 9
• Ⅲ. 假登記의 利用實態分析 = 13
• 1. 調査方法 = 13
• 2. 分析 = 14
• Ⅳ. 外國의 立法例 = 30
• 1. 西獨 = 30
• 2. 英國 = 31
• 3. 프랑스 = 33
• 4. 美國 = 34
• 5. 日本 = 36
• Ⅴ. 假登記法律關係에 對한 判例의 態度 = 43
• 1. 假登記의 效力 = 43
• 2. 假登記에 基한 本登記節次 = 44
• 3. 擔保目的의 假登記 = 45
• 4. 讓渡擔保 = 47
• Ⅵ. 假登記擔保權의 法律關係 = 50
• 1. 假登記擔保權의 法律的 性質 = 50
• 2. 假登記擔保權의 設定 = 51
• 가. 當事者 = 51
• 나. 目的物 = 51
• 다. 被擔保債權 = 52
• 라. 假登記擔保設定契約의 內容 = 53
• 3. 假登記擔保權의 對內的 效力 = 53
• 가. 被擔保債權의 範圍 = 54
• 나. 目的物의 範圍 = 55
• 다. 目的物의 利用關係 = 56
• 라. 假登記擔保權의 處分 = 56
• 마. 優先弁濟權 = 58
• 4. 假登記擔保權의 實行 = 58
• 가. 優先弁濟權 = 58
• 나. □登記에 基한 本登記 = 59
• 다. 實行의 方法 = 59
• 라. 淸算義務 = 60
• 마. 淸算金請求權者 = 61
• 바. 還受權 = 62
• 5. □登記擔保權의 對外的效力 = 63
• 가. 競賣項次에의 參加 = 63
• 나. 第 3 者異議의 訴 = 65
• 다. 會社整理節次및 破産節次와의 關係 = 66
• 라. 國稅優先權과의 關係 = 66
• Ⅶ. 結論 = 68
• 參考文獻 = 75
• Summary = 77