경매절차에서 청구권 보전을 위한 가등기의 효력 – 가등기담보 등에 관한 법률 개정방향을 포함하여 –

There is a precedent asserting that provisional registration only has the effect of preserving the priority, and provisional registration alone does not have any effect under a substantive law. If there is a registration of an intermediate disposition before principal registration according to provisional registration, the person having the right to the provisional registration may request the obligor for provisional registration to perform the principal registration procedure according to provisional registration for preserving the priority. However, it is contradictory to say that the person having the right to the provisional registration may request the obligor for provisional registration to perform the principal registration procedure, while the provisional registration alone does not have any effect under a substantive law. It is necessary to clarify that any disposition made after the provisional registration for preserving the right to claim is ineffective when the person having the right to the provisional registration applies for the principal registration. In addition, there is no regulation in the Provisional Registration Security Act regarding the effects of provisional registration in case of provisional registration for security, so there is a need to regulate it in a unified manner. In consideration of such fact, it is necessary to provide a regulation indicating “The disposition of an object made after provisional registration shall not be effective to the extent that it violates the right to be preserved by the provisional registration,” just as Article 187-2 of the revised bill of the Civil Act in 2004. On the other hand, in practice, there are cases where provisional registration for security is also carried out for preserving the right to claim, and if the property for auction has been registered temporarily, the auction court cannot identify whether it is the provisional registration for securing the right to claim or it is the provisional registration for security. So, if the person having the right to the provisional registration does not submit a claim report, it is treated as the provisional registration for preserving the right to claim. In addition, the provisional registration for preserving the right to claim established before the security right to be lapsed by sale or provisional seizure is not lapsed by the sale, but is taken over by the buyer, so there are many cases in which auctions of temporarily registered real estate are miscarried. To address this problem, there is a need to establish a new provision stating “The provisional registration for preserving the priority that is not reported shall be presumed to be a provisional registration for security, and such provisional registration shall be lapsed by sale,” in Article 16 of the Provisional Registration Security Act.