Earticle

초록

영어

According to the fifth clause of Article 91 of Civil Execution Act, although it practically takes on abernahmeprinzip that forces a purchaser of real estate auctions (successful bidder) to reimburse receivables collateralized as a lien with respect to a real estate lien, a rightful person is not legally obliged to report a lien in auction procedures and the auction court is not responsible for definite title examination, solely notifying a purchase candidate of legal relationships such as whether or not a lien is valid by record with ambiguous not indisputable expression. The responsibility on this is completely imposed on a purchaser. Further, different from other rights over real estate that take registration as a method of public notice, a lien is valid with lawful occupation (Civil Law the second clause of Article 320) without registration, which is subject to conflict with a lien and other rights. In Civil Execution Act, if a false or exaggerated lien is reported by abusing the problem in a real estate auction with a collusion of debtor, owner, and lien holder, a rightful person in a prior-order security right is subject to infringement by a lowered winning bid and a status of a purchaser of real estate auctions (successful bidder) noticeably is not secured. For this, along with genuine protection of lien holder and prevention of false, exaggerated report of a lien, auction participants should be able to check in advance whether or not a lien is true. To achieve this, required is to introduce a lien registration order system similar to the lease registration order system of housing (shop) leaseholder in Special Civil Law. Required is also to secure a status of a rightful person such as a person holding a security right and a purchaser by enabling a lien holder to access to material, along with making public the court's screening, when a lien holder applies for his or her right. If a valid part on a lien can be definitized and also title examination on the sale property can be settled in concrete through an enhanced lien holder legal status on real estate and relevant improvement schemes, a transparent real estate auction market will be set up which prevents delayed real estate procedures and possible disputes later on in advance.

목차

< Abstract >
 Ⅰ. 머리말
 Ⅱ. 부동산경매 시 유치권자의 법적지위
  1. 학설
  2. 유치권에 기인한 형식적 경매
  3. 실질적 경매(강제·임의경매)
 Ⅲ. 부동산경매 개시 시 발생되는 유치권의 문제
  1. 유치권의 기록상 현황조사서
  2. 매각물건명세서의 실체법상 공신력
  3. 유치권자의 권리신고
  4. 유치권 권원의 진의여부 및 남용
  5. 허위‧가장 유치권자의 처벌
 Ⅳ. 집행절차에서 유치권제도의 개선방향
  1. 매각물건의 현황조사서의 실질화
  2. 매각물건명세서의 공신력 도입
  3. 유치권의 권리신고 의무화
  4. 유치권신고자에 대한 공탁금납부제도 도입
  5. 허위·가장 유치권 신고자에 대한 처벌 강화
  6. 기타 개선방안
 Ⅴ. 맺음말
 <참고문헌>

키워드

경매제도 등기명령제도 현황조사서 매각물건명세서 공탁금납부제도 유치권 auction system registration order system present condition report sale-specification deposit payment system a lien

저자

• 이석근 [ Lee, Suk-Keun | 법학 박사, 서일대학교 부동산학과 강사. ]
• 권영수 [ Kwon, Young-Soo | 행정학 및 부동산학 박사, 서일대학교 부동산학과 교수 ]

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