미등기건물에 대한 강제집행상의 문제점 및 입법론적 고찰

The Supreme Court ruled that regarding unregistered buildings or buildings under construction that do not have a building register because they have not received approval from the proper licensing authorities, the execution of corporeal movables according to the civil enforcement law article 189, paragraph 2, subpara-graph 1 does not apply. However, because these building cannot have preservative registration of title or seizure registration, the execution of real estate is also not permitted. Thus, even though the properties belong to the debtor, the creditor has no way of carrying out forcible execution regarding those buildings. This can only be described as a dereliction of the judicature, which runs counter to the constitutional principles that must safeguard the property rights of citizens. Objectively, it is proper in terms of private law justice that all property rights of debtors that have economic value should clearly come under the execution rights of creditors. Of course, there needs to be limits to the execution rights according to the needs of public interest that must guarantee a minimum level of living standard to debtors, but in case of unregistered buildings or buildings under construction, their property values are very significant, and for the debtors to use the method of intentionally not applying for approval but using them illegally, thus stripping the creditorsʼ execution rights, or not pay the bills for the construction of the building and thus incur tremendous economic loss to creditors such as construction companies, for them to thus block forcible execution is highly improper. Accordingly, there is a need to introduce such things as sign registration adopted by Japanese Law of Real Estate Registration and, if there is an application of execution regarding an unregistered building or building under construction, register it through the official authority and publicly announce it. In such case, the auction will be carried out according to the method of compulsory real estate execution, so there will not be any problem. It would also be preferable to auction surface rights or lease rights at the same time along with buildings under construction and un-registered buildings, to carry out compulsory execution using a block sale method. Moreover, according to existing laws, there is a need to change the above precedent and allow compulsory executions using the method of execution of corporeal movables, and in case a current bailiff is in charge of carrying out the execution of corporeal movables, to make a judicial clerk take over the charge according to real estate execution laws. Changes in the precedents or revisions in related laws are needed to acknowledge the legal surface rights of those who have purchased buildings under construction, and, during the process of guaranteeing land purchase claim or executing corporeal movables regarding an unregistered building, if the building is completed, it is preferable to acknowledge its identity and guarantee the creditorʼs compulsory execution rights regarding unregistered buildings or buildings under construction through such things as revising the laws and regulations for recognizing conversions to real estate execution procedures and strengthening public regulations against illegal buildings.