不動産競賣制度의 改善方案에 관한 硏究

Abstract

In the case of real estate auctions, real estate owned by a debtor or 3rd-party debt guarantor is seized and sold to pay off creditors. It is a kind of seizure, but the creditors are not permitted to directly confiscate the debtor's assets. Instead, creditors must file for seizure of a debtor's assets with the regional court, which begins the liquidation process. In January 2002, regulations regarding the enforcement of civil law were passed, and the forced disposition of real estate assets was the most important part of this law. The law prescribed guidelines regarding administration of seized assets, stipulated the procedure for confiscating semi-real estate assets such as boats and other property, set regulations for enforcing mortgage rights on real estate, and established standards for disposition of non-real estate assets. Accordingly, forced disposition of real estate assets became the core of compulsory enforcement of civil law. According to the laws of civil procedure, once a creditor files for forced sale by auction of a debtor's assets, the forced disposition process begins. There are 3 stages in this process- seizure, sale (liquidation) and payment to creditors. In the seizure stage, the debtor loses rights over their property, and under such circumstances forced auction can take place as a kind of preservative measure. Real estate seizures occur after being recorded in the real estate registry. In the sale (auction) stage of seized real estate, the court can dispose of the assets by accepting sealed bids, holding a public auction on an appointed date, or by accepting bids during a period of 1 week to 1 month. Finally, in the payment to creditors stage, the proceeds from asset liquidation are used to pay the expenses of carrying out the auction and then the remaining funds are used to repay creditors. In the case of a single creditor, funds are given directly to the creditor and then the remaining funds, if any, are given to the debtor. In the case of numerous creditors, payments are made depending on creditors' debt seniority. In cases where creditors' debt seniority is the same or doesn't exist at all, the principle of fairness to all creditors is upheld and payments are made in proportion to the value of the creditor's claim. Once the process of forced sale by auction of real estate is initiated by one creditor, other creditors also take part to receive payment for their claims as well. A key issue in this process is the legal status and debt seniority of creditors who wish to be repaid. Fortunately, the proceeds of the forced sale are not paid lump-sum to one creditor but are rather shared among all creditors. On the other hand, rarely is it possible to satisfy all creditors. Especially in Korea the repayment to creditors follows the principle of fairness. Even the creditor who initiates auction proceedings against the debtor has the same repayment priority as other creditors, and receives funds in proportion to the size of their outstanding claims. However there are several disadvantages- because repayment to creditors is proportional to their claims under the principle of fairness, if a large number of creditors participates in the auction proceedings, the situation can become very complicated. Also, in order to increase the funds that they might receive, creditors tend to overstate the value of their claims against the debtor, which violates the rights of the debtor. In addition, some debtors create false debts to avoid paying their creditors. Because of foul play and other problems, the initiator of auction proceedings can justifiably worry about suffering harm. Most real estate assets are high-priced and are publicly registered, so there are many cases in which rights of usage and mortgage rights are hard to untangle. Particularly in the case of houses and storefront buildings, determining ownership rights is usually quite complicated because of the rental variable and conditions which aren't apparent from looking at the public register. It is therefore difficult to participate in a real estate auction without first analyzing the rights of all the parties involved. The structure of this research thesis is as follows. Part 1 is the introduction which covers real estate auction regulations and their significance. Also, the general direction, goal, scope and methodology of this research paper is explained. In Part 2, the basic principles and types of auctions are discussed, including the stages of real estate auctions- seizure, sale, and payment to creditors- and the general process of real estate auctions is covered. In Part 3, the importance of property rights analysis is discussed as it relates to real estate auctions. Procedures regarding forced auction of real estate are examined in various countries such as Germany, France, Japan and other countries and the relevant laws regarding such auctions are examined. In Part 4, the legal rights of renters, the housing renter protection law, the storefront building renter protection law, and other special laws are discussed. Problems arising from the laws and proposed solutions are covered. In Part 5, issues not covered in the other sections are briefly touched upon. This paper concludes with an overall summary, the outlook for the future direction of Korean real estate auction policies, and policy suggestions.