예고등기의 존폐논의에 관한 소고

Abstract

Preannounced registration shall be filed by commission of court which has accepted a lawsuit in cases where a lawsuit for cancellation or restoration of registration due to nullity or revocation of grounds for registration has been instituted. However, this shall not apply to cases where such nullity or revocation cannot be set up against a third person acting in good faith. (Registration of Real Estate Act Article 4) The Preannounced registration is a preliminary registration in the way that it has no direct connection with the effect of alteration of a right. The Preannounced registration has the warning effect to third parties. However, the Preannounced registration has been abused for a drop in successful bid of auction for Real Estate. Hence, the Department of Justice made pre-announcement of legislation for the repeal of the Preannounced registration which in the whole amendment to Korean Real Estate Act in November 9th, 2009 because abuses of the Preannounced registration such as disadvantages of registered person on the transactions by the Preannounced registration or the Preannounced registration by the litigation for obstruction of the performance are serious and the practical function of the Preannounced registration has lost at the present time. There are several particulars which should be considered about this amendment. In other words, consideration by composition of change in a real right to return and problem of similar application of 'Fictitious Declaration of Intention in Collusion' are existed in juridical; consideration about relationship with repeal of provisional registration and disposition is also needed in a legal system. Likewise, the problem of national cost-bearing would become an object of concern realistically. When these aspects are considered, the comparison between the abuse of the notice registration as practical problem and the relationship with other systems by the repeal and the national necessity is needed for the problem of the notice registration.