부동산등기법상 토지합필등기 및 그 특례 규정의 문제점

윤부찬(Buchan Yoon) 전북대학교 법학연구소 2019 法學硏究 Vol.60 No.-

우리 부동산등기법은 둘 이상의 토지를 합병하는 합필을 인정하고 있다. 이러한 합병의 사유에 대하여 우리 부동산등기법과 공간정보법은 이를 제한하고 있다. 이는 우리 물권법이 물건의 특정일부위에 용익권의 성립은 인정하고 있으나, 담보권의 성립은 인정하지 않는데 기인한 것이다. 다만 부동산등기법 제37조는 합병 대상 토지에 등기원인, 그 원인일자, 접수번호가 같은 저당권이 있는 경우에는 비록 목적물 위에 담보권이 존재함에도 불구하고 합병이 가능하다고 규정하고 있다. 이 규정은 해석상 적용범위에 있어서 약간의 문제가 없는 것은 아니지만 대체로 수긍할 수 있다. 그런데 부동산등기법 제38조는 토지 합병을 위하여 대장상 합병후 합병등기전에 합병목적물중 일부에 대하여 소유권이전등기 또는 저당권 등 처분제한등기를 한 경우에도 합병을 인정하는 특례규정을 두고 있다. 그러나 이러한 규정은 부동산표시등기의 일종인 합병등기에 권리변동적 효력을 인정한 것이어서 수긍하기 어렵고, 차라리 권리변동등기와 부동산변동등기를 동시에 청구하는 것으로 정비하는 것이 필요하지 않을까 생각된다. 한편 우리 부동산등기, 등록에 관한 공적 장부는 대장과 등기부라는 이중적 구조를 취하고 있기때문에 대장과 등기부상 부동산표시의 불일치 현상이 생길 수밖에 없고, 이러한 불일치가 발생한 경우 언제나 등기가 무효라고 하여서는 곤란할 것이다. 즉 대장상 합필등록후 합필등기 전에 합필등기를 제한하는 사유에 해당하는 권리변경등기가 있는 경우에는 합필등록된 대장의 원상회복을 위한 조치가 필요할 것이다. 이러한 조치는 당사자의 신청 또는 등기소의 대장소관청에 대한 통지에 의하여 이루어져야 하는데 당사자가 신청을 게을리하면 결국 이의 시정은 이루어지지 않게 된다. 합필등기 등 부동산표시변경등기는 그 등기원인이 대장상 합필등록인 것이므로, 대장소관청에서 부동산표시변경등록을 실시하면 이를 등기소의 변경등기를 촉탁하도록 하는 것이 대장과 등기부상의 부동산표시를 일치시키는 가장 효율적인 방법이 아닐까 생각된다. Korea Real Estate Registration Act grants for the combining lots of lands or combining of Buildings. The grounds for restricting combining of lands or buildings are provided in Art. 37 and 42 of Real Estate Registration Act and Art. 80 of Act on Land Survey and Management –Cadastral Records Act-, etc. These restrictions are based on the nature of real estate right that a security right can not be granted on the certain partial part on real estate in Korea, unlike usufructuary rights. Art. 37 of Korea Real Estate Registration Act provides as follows. With respect to land on which rights other than ownership, superficies, rights to lease on a deposit basis, leasehold interests, and easements on the subservient estate are registered, combination of lots of land shall not be registered. But, this shall not apply where mortgages are created over all lots of land with the same grounds for registration, date and receipt number. This provision is applicable with respect to building combinations. This paper points out that insufficiency of restriction for registration of combination on real estate, mortgages are created over all lots of land with the same grounds for registration, date and receipt number. Article 38 of Korea Real Estate Registration Act provides special exceptions for combining lots of land. Even where the transfer of ownership is registered on part of land among land combined before the combination of lots of land is registered but after procedures for combining the lots of land under the Act on the Establishment, Management, etc. of Spatial Data are completed, registered owners of the relevant land may apply for the registration of combination of lots to co-own the land after combination of the lots if interested parties consent thereto. Even where the transfer of ownership or establishment of security right, one of lands among the lands combined in registry book before the combination of lots of land is registered but after procedures for combining the lots of land under the Act on Land Survey and Management and Cadastral Records are completed. This paper argued the nature of recording combining of real estate, that is just indication of land or physical condition of building, not for changing rights on real estate. I examined the needs for amendment of these provisions on the combination of real estate in Korea.

주택담보노후연금제도와 그 문제점

윤부찬(Buchan Yoon) 충남대학교 법학연구소 2010 法學硏究 Vol.21 No.1

구분소유적 공유관계의 법적 구성에 관한 검토

윤부찬 ( Yoon Buchan ) 연세대학교 법학연구원 2020 法學硏究 Vol.30 No.1

It is called sectional co-ownership relations that two or more persons agreed to specify the location and area of real estate and to hold sectional ownership, and they make a registration in proportion to their own shares as sectional co-ownership. There are some questions of requisites of establishing, grounds of rule, effects on sectional ownership, because of no provisions in Korea Civil Act. With regard to legal character of sectional co-ownership, the are two theories in Korea, - theory of co-ownership and theory of title trust(judicial precedent). This paper points out that each theory is deficient in solving all the problems on sectional co-ownership. There are many advanced researches on sectional co-ownership. This paper focused on the fields that are not reviewed or are not sufficiently examined by other advanced researches. This paper looks on the problems of objective indicator to make border between co-owners. If there were no physical borders specifying the location and area of each sectional co-owners, sectional ownership may not be granted on the lands or buildings. Both theories grant that, the sectional co-owner can lease to third person on the sectional part of the co-owned land or building. On the sectional co-owner's leasing acts to third person on the sectional part of the co-owned land or building, the agreement between co-owners should be the grounds for the certain co-owner's. But, for applicant for registration of leasehold, all the co-owners should apply for registration to the registration office, because a registrar may not know the existence of the sectional co-ownership contracts between co-owners. When Certain co-owners transferred to third person the parts, his or her exclusively occupying parts of the land or the building, there are controversy about the grounds for keeping on the sectional co-ownership between assignee of sectional co-ownership and other sectional co-owner. Title trust theory explains it with implied consent theory that grants the existence of consent between assignee of sectional co-ownership and other sectional co-owner. But, co-ownership theory explains it that a claim that one of co-owners holds against other co-owners with respect to the property in co-ownership, may be exercised against their specific assignee. But this paper points out that co-ownership theory may beyond the limits of Korea Civil Code, not providing the provision for applying covenant between co-owners to the assignee.

ABS의 신용보강제도와 그 법적 문제

윤부찬 연세법학회 ( 구 연세법학연구회 ) 2003 연세법학 Vol.10 No.1

In 1997, asset-backed securitization technique was introduced into Korea. The securitization allows an issuer to dissect the risks and rewards of the asset. And securitization is the method by which financial assets being incapable of trade are converted into negotiable securities. This liquidity is enhanced by credit enhancement. In this paper, I examined general credit enhancement surrounding asset-backed securities and the financial and legal problems with credit enhancement in Korea. There are two major types of the credit enhancement : internal and external. Internal credit enhancement is taken in various forms, which are, for example, senior/subordinated structure, overcollateralization and reserve accounts, etc. For external credit enhancement, an insurance policy issued by a insurance company, line of credit by a bank, and a guarantee by a third party are employed. Most of asset-backed securities were issued by senior/subordinated credit structures in Korea. This credit structure was designed to have multi class(multi tranche). Generally, there are structures with pro-rata and sequential payment credit tranches, but only sequential payment scheme is used in Korea. In a sequential payment structure, the subordinated security holders may not receive no more than principal after the senior security has been paid in full. In Korea, this priority is not in rem but in personam. So, it is inevitable that revealing junior securities are not superior to the senior by instrument. Unless that, all the credit has the same position in priority in Korea. The second commonly used method for internal credit enhancement is overcollaterization. Higher collateral provided to bond is the key in this scheme. In case of losses, the bonds are protected by the amounts of overcollateralization. From the standpoint of law, overcollaterization for asset-backed securities is not a kind of collateralization but just liable-property, in Korea. In securitization of credit card receivables, an alternative to overcollateralization as credit enhancement is spread accounts. These are just contracts that the issuers reserve excess cash flows to create cushion for losses. So bond holders has no priority to other creditors regarding extra flows or spread accounts. In Korea, in the genre of external credit enhancement, most popular method is credit line provided by banks. In some case, the third party provides guarantee to the credit line. This credit line is not provided for the subordinated securities in Korea. And providers of credit line do not have the position of debtors to the asset-backed securities. So, it just hedges the risk of timely payment. So it is insufficient to protect holders of asset-backed securities. Most traditional credit enhancement methods is guarantee. However, in Korea, few guarantees are employed in asset-backed securities, because guarantee institutes have suffered from big losses in the bond market, in Korea after 1997. And there is only one monoline insurance company . Seoul Guarantee Insurance Co(SGI), in Korea. But this company does not sell insurance to the asset-backed securities because of license problems and profitability. In Korea, all the insurance programs should be approved by Korea Financial Supervisory Commission. Insurance program of asset backed securities is not approved to SGI from Korea Financial Supervisory Commision. So, what is useful for credit enhancement for the asset-backed securities is not insurances but guarantees. I think more monoline insurance company should be established for more effective and diverse external credit enhancement.