住宅法 제40조에 의한 抵當權設定 등의 制限과 附記登記 (Limited Mortgage Establishment and Supplementary Registration under the Housing Act, Article 40)

서지정보

· 발행기관 : 성균관대학교 법학연구원
· 수록지 정보 : 성균관법학 / 22권 / 2호 / 65 ~ 89페이지
· 저자명 : 이정배, 임건면

초록

The Housing Act, Article 40, is designed to ensure the residential stability of the planned dwellers, but since Section 3 of Article 40 defines only persons required for supplementary registration as the entities of business, the planned dwellers, despite the purpose of the legislation, are inadequately protected owing to the expansion of ownership preservation registration by creditor's subrogation.
Thus, the party required for registration under this regulation should not be limited to the business entity, namely, the project developer, but the constructor should also be included in the category of the business entity. Also, a bill should be legislated to the effect that anyone, including the business entity, should be required to perform supplementary registration under the Housing Act, Article 40, Ban on Establishment of Limited Properties, etc., upon registration for preserving ownership so as to more effectively protect the planned dwellers.
Also, if the claim to ownership transfer registration with regard to the housing construction site is seized or provisionally seized, Korea Housing Guarantee Co., without special reasons, is obliged to perform the ownership transfer registration procedure on condition of lifting attachment and provisional attachment. However, in the case of collective buildings, individual owners should not in principle dispose of their right to use the site, apart from their respective exclusive possession, and the business entity's attachment or provisional attachment of the creditor's claim to ownership transfer registration will run counter to the ban on separation and disposition. In other words, if the business entity's claim to ownership transfer registration with regard to the housing construction land is provisionally seized, this will lead to auctioning of the housing construction land, and consequently resulting in a sale separately from buildings on the housing land. Thus, the creditor's attachment and provisional attachment of the business entity's claim to ownership transfer registration will run counter to the Collective Building Act, Article 20, Section 2, making the action null and void, and consequently allowing the planned dwellers to exercise the claim to ownership transfer registration on the subrogation of the business entity.
Thus, if, pursuant to the Housing Act, Article 40, Section 6, the housing land is entrusted to Korea Housing Guarantee Co., such entrusting should be conducted only after supplementary registration with a ban on the establishment of mortgage in order to more effectively protect the planned dwellers under the Collective Building Act.
Also, under the Housing Act, Article 40, only the business entity is required to perform supplementary registration, and yet although a limited property right by a third party is established, the authorizing agency does not approve the use of the constructed housing as a whole, posing problems. Thus, in line with the purpose of the Housing Act, Article 40, there is a need to flexibly interpret the inspection of use by individual households under the Housing Act, Article 29, Section 4 and the Enforcement Ordinance of Housing Act, Article 36.

영어초록

The Housing Act, Article 40, is designed to ensure the residential stability of the planned dwellers, but since Section 3 of Article 40 defines only persons required for supplementary registration as the entities of business, the planned dwellers, despite the purpose of the legislation, are inadequately protected owing to the expansion of ownership preservation registration by creditor's subrogation.
Thus, the party required for registration under this regulation should not be limited to the business entity, namely, the project developer, but the constructor should also be included in the category of the business entity. Also, a bill should be legislated to the effect that anyone, including the business entity, should be required to perform supplementary registration under the Housing Act, Article 40, Ban on Establishment of Limited Properties, etc., upon registration for preserving ownership so as to more effectively protect the planned dwellers.
Also, if the claim to ownership transfer registration with regard to the housing construction site is seized or provisionally seized, Korea Housing Guarantee Co., without special reasons, is obliged to perform the ownership transfer registration procedure on condition of lifting attachment and provisional attachment. However, in the case of collective buildings, individual owners should not in principle dispose of their right to use the site, apart from their respective exclusive possession, and the business entity's attachment or provisional attachment of the creditor's claim to ownership transfer registration will run counter to the ban on separation and disposition. In other words, if the business entity's claim to ownership transfer registration with regard to the housing construction land is provisionally seized, this will lead to auctioning of the housing construction land, and consequently resulting in a sale separately from buildings on the housing land. Thus, the creditor's attachment and provisional attachment of the business entity's claim to ownership transfer registration will run counter to the Collective Building Act, Article 20, Section 2, making the action null and void, and consequently allowing the planned dwellers to exercise the claim to ownership transfer registration on the subrogation of the business entity.
Thus, if, pursuant to the Housing Act, Article 40, Section 6, the housing land is entrusted to Korea Housing Guarantee Co., such entrusting should be conducted only after supplementary registration with a ban on the establishment of mortgage in order to more effectively protect the planned dwellers under the Collective Building Act.
Also, under the Housing Act, Article 40, only the business entity is required to perform supplementary registration, and yet although a limited property right by a third party is established, the authorizing agency does not approve the use of the constructed housing as a whole, posing problems. Thus, in line with the purpose of the Housing Act, Article 40, there is a need to flexibly interpret the inspection of use by individual households under the Housing Act, Article 29, Section 4 and the Enforcement Ordinance of Housing Act, Article 36.

참고자료

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