未完成建物의 强制執行에 관한 硏究

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.