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未完成建物의 强制執行에 관한 硏究

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Alternative Title
A Study of Compulsory Execution for Incomplete Buildings
Abstract
In Korea, buildings and lands have been treated as separate real estate properties and changes in rights have been noticed through registrations. The possibility of auction of incomplete buildings or plans on them have been the biggest problem in real estate property auction system in Korean for several decades.
Regarding the process of newly establishing buildings, physical completion of buildings has five categories as follows: First, buildings are additions to lands and in the phase of groundwork. These buildings don't have their shapes as fixtures independent from lands. Second, there are incomplete buildings in the process of construction, independent fixtures from lands, have their own looks and are treated as independent real estate properties. Third, there are incomplete buildings in administrative procedure. Despite completion of buildings, they are not in the authorization procedure. Fourth, there are buildings without registration on preserving proprietary rights. Even though buildings are physically established and get authorization, the registration on preserving proprietary rights is not done yet. Finally, there are buildings whose registration on preserving proprietary rights are completed and posted on building registers. A building may get evaluation based on how much it is built, however, there has been no standard on the compulsory execution in current regulations for incomplete buildings in the second category.
However, modern buildings have had large size because of development in technology and it takes much cost and time to establish a building. Therefore, incomplete buildings may have substantial values in asset and these buildings have been under transaction in reality. Hence, there is a need to acknowledge the compulsory execution for these incomplete buildings. This paper discusses how to solve the problems and future issues by studying current trends and raising problems about the incomplete buildings in the second category.
Regarding the compulsory execution for incomplete buildings, the Item 1, Section 2, Article 527 of the former Civil Proceedings Act (currently, the Item 1, Section 2, Article 189 of the Civil Execution Act) had been analogized and applied in the existing cases. However, according to the decision by the Korea Supreme Court in E820, I95 on November 27, 1995, it set the meaning of "as a fixture on land unable to be registered and shall become an object for transaction" as "It is seen that a fixture under the execution for tangible movables is fixed on the land. But under the premise of being separated from the land after conversion, the fixture has a value of the object for transaction. Therefore, even though incomplete buildings are fixtures unable to be registered, they are not able to become separate objects. Therefore, the buildings are not under the execution for tangible movables." This made the execution for tangible movables invalid. However, among parties in real estate transactions, the incomplete buildings have been freely traded as objects and there is no fault to consider them as executed properties of obligators. Despite that, it is very unreasonable to neglect the situation. Hence, this practice shall be within the legal system by auctioning the building with execution for tangible movables or real estate properties. In the aspect, the way itself may be less important.
The purpose of this paper is to examine the problems from the compulsory execution for incomplete buildings in common sense and propose solutions. To this end, the difference between buildings as fixtures on lands and incomplete buildings and others shall be understood. Therefore, this paper reviews overview of the general compulsory execution, takes a look at real estate properties under compulsory sales by auction, legal relations for each step of newly established buildings, problems in the compulsory execution for the incomplete buildings and proposes solutions to these issues.
This paper is composed of a total of five chapters. The first chapter describes the purpose, scope and method of the research.
The second chapter generally reviews and mentions the general theory of the compulsory execution for real estate properties focusing on items, procedure and methods.
The third chapter presents the legislation examples in major countries related to the methods of compulsory execution for incomplete buildings and reviews the Item 1, Section 2, Article 189 and the Item 2, Section 1, Article 81 of the Civil Execution Act as a way of executing incomplete buildings. The fourth chapter takes a look at the problems in executing the incomplete buildings with the method of executing tangible movables and real estate properties and closely reviews measures to solve them. Especially, the fourth chapter presents that the Section 2, Article 42 of the current Civil Execution Ordinance changed the purport of the higher law, the Item 2, Section 1, Article 81 of the Civil Execution Act and this became invalid according to the Article 108 of the Korean Constitution and the Article 23 of the Civil Execution Act.
Finally, the fifth chapter reviews the problems by establishing the Section 2, Article 42 of the Civil Execution Ordinance and the purport of the Item 2, Section 1, Article 81 of the Civil Execution Act. As a solution, the fifth chapter proposes to amend the Section 2, Article 42 of the Civil Execution Ordinance and introduce the actual investigation rights of the registry in addition to amending the Article 131 of the Real Estate Registration Act.
Author(s)
이충은
Issued Date
2008
Awarded Date
2008. 2
Type
Dissertation
URI
http://dcoll.jejunu.ac.kr/jsp/common/DcLoOrgPer.jsp?sItemId=000000004193
Alternative Author(s)
Lee, Choong Eun
Affiliation
제주대학교 대학원
Department
대학원 법학과
Advisor
김상찬
Table Of Contents
第1章 序論 = 1
제1절 연구의 목적 = 1
제2절 연구의 범위와 방법 = 4
第2章 不動産 强制執行 一般論 = 6
제1절 서설 = 6
1. 부동산강제집행의 의의 = 6
2. 강제집행 절차 = 8
제2절 강제경매의 대상 = 11
1. 토지, 건물 = 11
2. 미등기부동산 = 14
3. 부동산과 동일시 되는 권리(준부동산) = 16
제3절 강제집행의 방법 = 18
1. 강제경매 = 19
2. 강제관리 = 25
3. 강제저당제도 = 26
第3章 未完成建物에 대한 强制執行方法 = 28
제1절 서설 = 28
제2절 미완성건물 강제집행에 관한 주요국가의 입법례 = 29
1. 일본 = 29
2. 독일 = 31
3. 스위스 = 31
4. 이탈리아 = 32
5. 프랑스 = 32
6. 영미법 = 33
7. 함의 = 33
제3절 건물의 신축단계에 따른 집행방법 = 34
1. 가설건축물의 집행방법 = 36
2. 무허가건물의 집행방법 = 37
3. 건물의 신축정도에 따른 집행방법 = 38
제4절 미완성건물의 집행방법 = 41
1. 서설 = 41
2. 유체동산집행방법을 준용하는 방법 = 42
3. 부동산집행방법을 준용하는 방법 = 53
第4章 未完成建物에 대한 强制執行의 問題點 및 解決方案 = 57
제1절 서설 = 57
제2절 유체동산집행방법을 준용할 경우의 문제점 = 58
1. 건물평가상의 문제점 = 58
2. 집행절차상의 문제점 = 59
3. 매수인(경락인)의 소유권취득상의 문제점 = 62
4. 채무자에 의한 건물완공과 소유권보존등기에 따른 문제점 = 63
5. 실체법과 충돌하는 문제점 = 65
6. 건물을 부동산으로 보는 시기에 대한 문제점 = 65
제3절 부동산집행방법을 준용할 경우의 문제점 = 67
1. 서설 = 67
2. 민사집행법 제81조 제1항 제2호 본문 적용시 문제점 = 67
3. 민사집행법 제81조 제1항 제2호 단서 적용시 문제점 = 68
제4절 미완성건물의 강제집행방안 검토 = 72
1. 서설 = 72
2. 미완성건물의 강제집행방안에 대한 제 견해 = 74
3. 검토 = 76
第5章 結論 = 80
참고문헌 = 83
ABSTRACT = 91
Degree
Master
Publisher
제주대학교 대학원
Citation
이충은. (2008). 未完成建物의 强制執行에 관한 硏究
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General Graduate School > Law
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