건축이 중단된 건물의 부동산 강제집행방법에 대한 연구

Abstract

Current Civil Execution Act does not have a literal provision as regards the way of executing real property of “a building of which construction is stopped”. Judgments of the Courts state that “a building of which construction is stopped” is not a personal property(chattel) but a real property. “The building of which the construction is stopped” must be the object of property right. If so, although it is proper that a national agency should secure opportunities of taking back claims through a method of an auction so as to secure claims of creditors, in this way, the execution of the building has not been possible originally, which has brought about social and legal issues. As a result, centering on the building of which construction is stopped,a number of interested parties, including land-owner, builders, building contractors, creditors, and lien-holders, have been experiencing legal and financial difficulties due to institutional insufficiencies which do not allow an auction. Additionally, the insufficiencies have caused the issue of disrupting city's beautiful landscape out of the building of which construction is stopped being left alone as a long-term ugly aspect. This article, therefore, suggests the establishment of “demonstrative registry system” on the premise for allowing an auction with respect to “a building of which construction is stopped”. The focus of “demonstrative registry system” is on securing the qualification as the object of transaction through securing right to dispose(jus disponendi) rather than securing the right to use and benefit from the building. While a private transaction is secured,interested parties and their relationship are connected in a complicated way. As a result, there is no self-solution. This article proposes that all the issues be resolved at once through an auction. Thereby, an auction of “the building of which construction is stopped” is possible and the building-auction winner can continue to proceed the stopped construction and finish the construction,which will provide a solution to the social, economic, and legal problems. It has passed about thirteen years since the decision of the Supreme Court of Korea which disallowed an auction through the real property execution has come out. As “a building of which construction is stopped” has been outside of the qualified object of real property execution, the author firmly believes that it is desirable that the problems should be resolved immediately through the introduction of “the demonstrative registry system”, supra mentioned.