不動産에 대한 保全處分의 競合에 따른 登記의 效力 - 不動産競賣節次와 관련하여 -

Abstract

The preservative measure is a tentative measure that a court rules in advance of the final judgment. This is for easy execution of final judgment on rights of jurisdiction or the conflict of legal relation which are subject to civil suit. In other words, the preservative measure is a procedure to enforce restrictions, under court’s approval for the tentative state of rights on debtor’s property or rights relations, before confirmation of judgment on the merits. The enforcement of restriction is approved based on two pre-requisites; the preserved right and the necessity of the preservation. Thus, the preservative measure must follow quick and simple procedure as it is unstable by its nature and can be canceled by debtor’s objection or final judgment. Civil execution ACT stipulates that there are three kinds of preservative measure; Provisional attachment, Provisional measure on the subject of legal dispute, and Provisional measure to decide on the temporary status. First, provisional attachment aims to sustain debtor’s general property in its current value in order to proceed with future compulsory execution on monetary claims or bonds which can be converted into money. Second, provisional measure on the subject of legal dispute aims to preserve a specific matter in its current condition for creditor with claim to safely proceed with future execution of that matter. The measure prevents the creditor from high risks of not being able to exercise his/her rights due to the changes in the condition. Lastly, provisional measure to decide on the temporary status aims to eliminate the current risks that may arise and prevent any losses from conflicts within a legal relation. In short, the preservative measure is a system to establish a temporary legal relation based on an execution procedure which is independent of lawsuit on the merits. This system applies to lawsuits derived from legal relation and which are subject to civil suits. Out of the preservative measure on the real property, the execution of provisional attachment and Injunction for prohibition of disposition must be recorded on the registration book. Therefore, the provisional attachment and Injunction for prohibition of disposition fall under the cases where the validity of Registration is affected. The registration under the competition between the preservative measures means that two or more registrations have been recorded on the same registration book. In this thesis, we evaluated the validity of the registration due to the competition between preservative measures in three(3) cases; ① competition between provisional attachments ② competition between provisional measures ③ competition between provisional attachment and provisional measures.