저당권설정등기청구권을 피보전권리로 하는 부동산 처분금지가처분권자에게 부동산 경매에서의 배당 · 배당액 공탁의 가부

Abstract

The prohibitive measure provisional disposition, aimed to protect the preserved right on provisional disposition creditor’s object, deprives the debtor to exercise the right of real property disposal and prevents any change in legal and factual status until enforcement, enabling the exercise of the preserved right. The real property prohibitive measure provisional disposition has the effect of preservation of enforcement as well as priority, taking place limited to the circumstance where exercising the preserved right is interfered subject to substantive effect. Though there was a conflict on allowing the prohibitive measure provisional disposition preserving for the right to claim mortgage registration, dominant theories and precedents allow this form of the prohibitive measure provisional disposition at present. Substantive effect address that after prohibitive measure provisional disposition, a third party having obtained the ownership or other rights upon the real property inevitably embraces burden of mortgage subsequent to final conclusive judgment in favor of the person with provisional disposition. There is a case that distribution of auction proceeds was made to the person with prohibitive measure provisional disposition despite failure of mortgage registration before the property auction. In this case, the person with provisional disposition won the case before the property auction proceeded, though mortgage registration was terminated as the property was sold at the auction. However, the case did not go under the profound review on whether on distribution to the person with provisional disposition is feasible as the obligee made no further claim subject to the case. Although the person with provision disposition could not be regarded as the obligee. It is possible to consider deposit of distribution for the person with provisional disposition in accordance with Article 160 Clause 1 of the Civil Execution Act that allows deposition of distribution up to the amount of credit toward the person with mortgage provisional registration. It is not likely to apply this Article due to stability issues under the current legal system. However, it is necessary to define guidance regarding deposition of distribution toward the person with provisional disposition through official legislation considering the purpose and effect of prohibitive measure provisional disposition, procedure of realizing preserved right.