假登記擔保制度에 관한 考察 = A Study on the Provision Registration Security

다국어 초록 (Multilingual Abstract)

Origcnally the Provisional Registration was inacted for preserving the rank of registration-application.
But runing counter to the original purpose, this system had become to the principal irregular security-system by the claim of the General-transactions-world which had made new irregular security-system over the regular scurity-system in civil law.
It is to make a precontract to pay in sufstitutes or the buy and sell, and them to register the preservation of the right of claims for property transfer provisionally on the basis of the contract.
Moreover, if the procedure of reconsiliation before institutins a suit is clarified in the contract, the obligee can take the procedure to transfer property immediately ofter the pay-day is over, with the result that obligee unlawfully seizes the ofject real-estate for more valuafle than the principal and interest.
The articles 607 and 608 of the civil law stipulate the return of the borrowed ofject as follow ; if the borrower has promised to substitute any other property shall not exceed the aggreegate valu of the original amount borrowed plus the interest thereupon. And any agvreement entered by the parties, contrary to the provisions, which is prejudicial to the borrower is not valid even if claimed as a "redemption" or in any othe legal remedy.
However, the supre count is of the opinion that if there is no reason for retrial, the violation of the enforceable provision also canrcot be the reason for denying the effect of a decision, because of the established effect which the protocol of reconsiliation befor suit has.
In this situation, the rules concerning the provisional registration the right and obligations among the obligee, the oliger parties.
In this treatise, I have tried to researeh into the rights and obligations of the three parties.
First, as for the obligee, the provisional registration security was no more than a preservation of the priority in the right of clains for property-transfer in the past, but now it gives him both the precedencein in repayment, and the right of clams, for public sale as the same real right as mortgage.
Second, as for the obliger, he has a clearing system which requires the obligee to notify the amount to be payed off, ather, assessing the secuvity if he is to excute the secuvity right. Besides be has two menth to spare ofter the notice arrives, and the right to claim simultaneous fulfilment in case of the transfer of the right to a real estate, And even if the procedure of the property-transfer of a security has been finished, of can claim (as longas for 10 years) to erase until the clearing procedure is completed.
Third, the interested paries can have notice of the execution of the security right, and the pasterior obligees can have the opportunity for securing his share in paying off. And they have the right to clain for public Aale durig the clearing period ever if the payment is not due.
Although the rules concerning the provisional registration security has some problems, it does provide some adeguate regulations about the right and obligations among the parties concerned.
Therefore, I expect to make practical applications of the provisional registration security system more than ever.

목차 (Table of Contents)

• 目次
• 第一章 序論 = 1
• I. 硏究目的 = 1
• II. 硏究方法과 範圍 = 2
• 第二章 假登記擔保의 槪念 = 3
• I. 假登記擔保의 意義 = 3
• II. 假登記擔保의 性質 = 4
• III. 假登記擔保의 類型 = 6
• IV. 假登記擔保의 社會的作用 = 7
• 第三章 假登記擔保理論의 槪觀 = 9
• I. 學說의 態度 = 9
• II. 우리나라 判例의 態度 = 9
• 第四章 假登記擔保의 設定 = 13
• I. 被擔保債權 = 13
• II. 設定契約 = 14
• III. 公示 = 15
• 第五章 「假登記擔保等에 관한 法律」 = 16
• I. 立法反對說 = 16
• II. 立法背景 = 16
• III. 主要骨子 = 17
• IV. 日本의 「假登記擔保契約에 관한 法律」과의 差異點 = 20
• 第六章 債權의 滿足方法과 擔保權의 實行 = 23
• I. 債權의 滿足方法 = 23
• II. 擔保權 實行의 方法 = 26
• 第七章 擔保로서 假登記制度 = 28
• I. 假登記擔保와 流抵當 = 28
• II. 公示方法과의 關係 = 28
• III. 擔保假登記의 立證責任 = 30
• 第八章 假登記擔保權의 實行節次 = 31
• I. 擔保權實行의 通知 = 31
• II. 淸算節次 = 34
• III. 利害關係人의 保護 = 35
• IV. 債權者의 保護 = 40
• V. 債務者등의 抹消請求權 = 43
• 第九章 民法規定과의 準用問題 = 45
• I. 意義 = 45
• II. 根擔保假登記 = 45
• III. 共同擔保假登記 = 46
• 第十章 關聯問題 = 48
• I. 提訴前和解와의 關係 = 48
• II. 擔保假登記와 刑事責任 關係 = 49
• III. 假登記擔保와 祖稅 = 52
• 第十一章 結論 = 54