假登記擔保制度에 관한 硏究 : 運營上의 問題點을 中心으로 = (A) Study on the Provisional Registration Security System : With an Emphasis on Problems in Its Operation

다국어 초록 (Multilingual Abstract)

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.

목차 (Table of Contents)

• 목차 = Ⅰ
• 第1章 序論 = 1
• 第1節 硏究의 目的 = 1
• 第2節 硏究의 範圍와 方法 = 3
• 第2章 假登記擔保의 法理 = 4
• 第1節 假登記擔保의 意義와 類型 = 4
• 1. 意義 및 類型 = 4
• 2. 社會的 作用 = 8
• 3. 類似制度와의 關係 = 10
• 第2節 假登記擔保法理의 發展 = 12
• 1. 學說 = 12
• 2. 判例理論의 形成 = 14
• 3. 外國의 立法例 = 18
• 第3節 現行 假登記擔保 등에 관한 法律 = 36
• 1. 法律制定 經緯 = 36
• 2. 目的과 主要內容 = 37
• 3. 適用의 範圍 = 41
• 第3章 假登記擔保의 法律關係 = 45
• 第1節 假登記擔保의 設定 = 45
• 1. 當事者와 目的物 = 45
• 2. 設定契約의 性質과 公示方法 = 47
• 3. 被擔保債權 = 49
• 第2節 假登記擔保의 效力 = 51
• 1. 對內的 效力 = 51
• 2. 對外的 效力 = 57
• 第3節 假登記擔保權의 實行 = 61
• 1. 實行要件·節次 및 精算 = 61
• 2. 提訴前和解 = 69
• 3. 假登記擔保權의 讓渡 및 消滅 = 70
• 第4章 假登記擔保制度의 運營上 問題點 및 改善方案 = 72
• 第1節 假登記擔保法의 適用範圍 등 = 72
• 1. 假登記擔保法의 適用範圍 = 72
• 2. 假登記擔保의 公示 = 73
• 3. 假登記後의 利害關係人 保護 = 76
• 4. 目的物 評價方法의 改善 = 77
• 第2節 提訴前和解의 濫用 등 = 78
• 1. 提訴前和解의 濫用 = 78
• 2. 法院의 態度에 관한 再檢討 = 80
• 3. 白紙委任狀과 雙方代理人 選任 = 81
• 4. 辯護士의 受任制限 = 84
• 第3節 換價節次間의 調整 등 = 85
• 1. 換價節次間의 調整 = 85
• 2. 請求權의 存在를 前提하는 假登記 許容 = 86
• 第5章 結論 = 90
• ABSTRACT = 92
• 參考文獻 = 96