대지권 미등기 부동산 경매의 문제점과 개선 방안

초록

In the case of a collective building, it is not only physically impossible to demolish the part only that the divisional owner of the middle floor of the collective building lost the right to use the land but also there are many problems that are difficult to solve in relation to the management of the register and the court auction procedure in Korea. For this reason, Article 20 of the Act on the Ownership and Management of Aggregate(Collective) Buildings in Korea (hereinafter referred to as the 'Aggregate Building Management Act') prevents the occurrence of separate ownership(rights) between land(site) and exclusive part of building without the right to use the land(site) by suppressing the separation of the exclusive part of the building and the right to use the site. This Act enacted to promote the stability of legal relations and rational discipline on Aggregate Building. Accordingly, in Korea, on the basis of Article 20 of the Aggregate Building Management Act, a right to use land(垈地使用權) is understood as the right (main right) under the substantive law to use the land to own a separate building[the substantive law land use right to use building], and the right to use the land (垈地權) is the right of the Real Estate Registration Act(based on Article 40). The majority of the scholar and lawyers uphold the theory the right to use the land (垈地權) is right of procedural law designed to disclose the non-separable land use right to register [the procedural non-separable land use right to own building]. In this case, the land use right to use building is subject to the disposition of the exclusive part, and it can be said that it is a subordinate right of exclusive part of building (Article 20 Paragraph 1 of the Aggregate Building Management Act), and the land use right to use building is disposable in case they had special contract to allow separate dispositiom on land and exclusive part of aggregate building. Unless there is a special contracts, the owner of the division cannot dispose of the right to use the land separately from the exclusive part he owns (分離處分禁止 ; Article 20 Paragraph 1 of the Aggreate Building Management Act). In the case of special contracts, there are problem that contracting parties can arbitrarily fix the contract time and contents of the contract afterwards. In spite of the case also, the Korea court Rechtspfleger(judicial officer ; 司法補佐官), the judiciary administrator officials and bailiff have to or not have to proceed enforcement process making efforts to verify or secure these documents. But there may be cases where the parties to the court auction, who became debtors of a third party, intentionally or negligently do not register the land use right to own building. It is difficult for a court or judicial assistant to properly respond to an objection to the proceedings of the court auction, stating that the fact confirmation is wrong in the future under the circumstances in which it is difficult to verify the facts. For this reason, it is not easy to take responsibility to the party or the court(time and opportunity loss due to the the court auction procedure, loss of trust of the court) in case the court auction canceled after the problomatic auction procedures. In order to solve or alleviate the problems related to the court auction of unregistered land use rights of aggregate buildings, I presented amendment draft of the principles of the Aggregate Building Management Act, amendment draft of the right of sale or buying on the exclusive part of building and land, and amendment draft of various laws related to land rights. At the same time, as a plan for active operation and improvement of the current aggregate building management system, I proposed a few preventive plans of separate sale of aggregate building and the land belong to the building. It is possible to prevent the problomatic court auctions of no land use right case by the administrative official’s inspection on building permits at the beginning of construction stage. Another ways are thorough court official’s inspection on the being(existence) of a right to use the land at the stage of real estate court auction. It is necessary or the court official to request of cooperation to the creditor, to inquire about detailed facts with the construction company, and/or to secure from the whom concerned on the current building reports, building construction permit documents, appraisal(valuation) reports, and aggregate building sales contracts.

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