가등기·가처분 투자 비밀 노트

PART 1. 가등기
CHAPTER 1. 가등기의 개관
가등기란? ················································································································· 20
가등기의 개념 도해(1) ·································································································· 21
CHAPTER 2. 가등기의 종류
1. 보전가등기(통상의 가등기) ························································································· 24
실사례 - 충주 2008 타경 2384 ················································································ 29
실사례 - 여주 2019 타경 34621··············································································· 37
2. 담보가등기(소유권이전담보가등기) ·············································································· 42
실사례 - 남부 2011 타경 14661 ·············································································· 45
대물반환예약서 ····································································································· 48
3. 담보목적가등기 ······································································································· 50
CHAPTER 3. 권리분석
권리분석에 앞서 ········································································································· 52
가등기의 개념 도해(2) ·································································································· 53
가등기의 개념 도해(3) ·································································································· 54
1. 보전가등기와 담보가등기의 구별 ················································································· 55
실사례 - 광주 2016 타경 16823(2) ··········································································· 59
인천 2017 타경 3859(2) ············································································· 60
2. 선순위 보전가등기 ··································································································· 62
※ 소멸시효와 제척기간의 비교 ················································································ 65
※ 예약완결권의 제척기간 ······················································································· 65
실사례 - 광주 2017 타경 7284(2) ············································································ 66
시흥 2017-07910-001(공매) ······································································ 69
중앙 2001 타경 11780 ·············································································· 75
중앙 2005 타경 16011 ·············································································· 76
군산 2018 타경 103950(통정허위표시) ························································· 81
통영 2018 타경 2747(사해행위로 인한 가등기말소) ········································ 87
포항 2017 타경 6208 ················································································ 95
중앙 2008 타경 22437(소멸시효중단, 원고의 패소) ········································ 97
부산 2013 타경 17345 ············································································ 101
홍성 2013 타경 488(1) ············································································ 103
3. 선순위 담보가등기 ································································································· 106
4. 종합적인 판단 ······································································································· 107
CHAPTER 4. 가등기의 해법
1. 개관 ··················································································································· 110
2. 배당기일 전 ········································································································· 112
실사례 - 서산 2015 타경 13312 ············································································ 113
3. 배당기일 후 ········································································································· 115
CHAPTER 5. 적용사례
의정부 2017 타경 11806 ··························································································· 118
전주 2017 타경 4459 ································································································ 119
청주 2019 타경 51839 ······························································································ 122
군산 2017 타경 4148(2) ···························································································· 124
통영 2018 타경 12140 ······························································································ 127
동부 2018 타경 1173(통정허위표시) ············································································· 129
중앙 2018 타경 106723(담보가등기) ············································································ 132
해남 2020 타경 51467(사해행위로 인한 가등기말소) ························································ 135
홍성 2015 타경 6367 ································································································ 143
홍성 2017 타경 16825(담보가등기 셀프 자백) ································································· 145

PART 2. 가처분
CHAPTER 1. 가처분의 개관
가처분이란? ············································································································ 154
1. 가처분의 목적 ······································································································· 155
※ 처분금지가처분과 점유이전금지가처분 비교 ························································· 156
2. 처분금지가처분의 효력 ··························································································· 157
처분금지효 ·········································································································· 157
상대적 효력 ·········································································································· 157
3. 점유이전금지가처분의 효력 ······················································································ 158
현상(점유주체)의 변경금지 ······················································································· 158
당사자 항정효 ······································································································· 158
공무상표시무효죄 ·································································································· 159
※ 임시의 지위를 정하는 가처분 ············································································· 160
※ 부동산 명도단행가처분이 발령되는 경우 ······························································ 160
4. 가처분등기의 유형 및 신청 이유 ················································································ 161
가처분등기의 유형 및 신청 이유 7가지 ········································································ 161
CHAPTER 2. 권리분석
권리분석 요약 정리 ···································································································· 164
1. 단계별 가처분 물건 분석 ·························································································· 165
1단계 : 말소기준권리를 기준으로 인수? 말소? 여부를 판단 ·············································· 165
2단계 : 본안소송의 제기 여부와 결과 조사 ··································································· 165
2. 선순위 가처분 ······································································································· 167
말소되는 가처분의 유형 ··························································································· 167
가처분취소신청서(제소기간도과) ············································································ 170
- 적용사례 5. 대전 2019 타경 106262 ···································································· 172
- 적용사례 6. 성남 2019 타경 1529 ······································································· 174
- 적용사례 8. 남부 2014 타경 8230 - 이혼 ······························································ 178
- 적용사례 4. 창원 2017 타경 4030 ······································································· 179
- 적용사례 13. 의정부 2010 타경 41846 ································································· 181
- 적용사례 14. 중앙 2010 타경 25583 ···································································· 182
- 적용사례 20. 중앙 2011 타경 32120 ···································································· 185
- 적용사례 20. 중앙 2013 타경 31176 ···································································· 188
가처분의 목적달성 및 본안소송 여부 확인 ···································································· 190
가처분 신청취하 및 집행해제 신청서 ······································································· 191
3. 후순위 가처분 ······································································································· 192
말소되는 경우 ······································································································· 192
예외적으로 인수(위험) ···························································································· 192
- 적용사례 11. 중앙 2009 타경 45352 ···································································· 194
- 적용사례 11. 중앙 2012 타경 17746 ···································································· 195
절대적 원인무효 사유에 기한 소유권이전등기말소청구권 가처분 ········································ 196
- 적용사례 1. 여주 2019 타경 34621 ······································································ 197
- 적용사례 청주 2019 타경 3373 ··········································································· 200
- 적용사례 성남 2007 타경 16504 ········································································· 202
위험(상대적 원인무효) ···························································································· 206
※ 채권자취소권 ·································································································· 208
CHAPTER 3. 가처분의 해법
1. 개관 ··················································································································· 214
2. 배당절차 종료 전 ··································································································· 217
매매계약해제 및 경매대금반환 신청서 ····································································· 218
3. 배당절차 종료 후 ··································································································· 219
CHAPTER 4. 적용사례
- 7. 대전 2019 타경 103393 ······················································································ 222
- 9. 성남 2018 타경 12133 ························································································ 223
- 10. 안산 2016 타경 54493 ······················································································ 225
- 12. 북부 2010 타경 19044 ······················································································ 227
- 12. 북부 2014 타경 2273 ························································································ 228
- 15. 여주 2008 타경 2987 ························································································ 229
- 16. 여주 2016 타경 9402(2) ···················································································· 230
- 17. 의정부 2010 타경 31993 ··················································································· 232
- 18. 대전 2013 타경 15340(2) ·················································································· 233
- 19. 성남 2013 타경 20276 ······················································································ 234

유권이전청구권보전가등기의 개념
1) 부동산에 관한 물권(소유권, 지상권, 지역권, 저당권, 권리질권) 또는 부동산 임차권의 설정·이전·변경·소멸의 청구권을 미리 보존하려 할 때, 즉 장래 권리변동을 발생시킬 청구권을 보전하려고 할 때
2) 위 청구권의 시기부 또는 정지조건부일 때
3) 위 청구권이 장래에 있어서 확정되는 것일 때 이루어지는 등기

등기사항전부증명서상의 ‘소유권이전청구권가등기’, 등기부등본의 등기원인에는 ‘매매예약’또는 ‘매매계약’이라고 기재되어 있으며, 흔히 소유권이전청구권가등기를 ‘매매예약가등기’라고도 한다.
아직 계약 체결의 상태에 이르지는 못했지만 장래에 체결될 것으로 미리 예정하는 개념으로서 매매계약이 체결된 경우와 달리 매수인은 매도인에 대해 당장은 이전등기청구권을 가지지 못하지만, 추후 매매계약을 완성할 수 있는 권리인 예약완결권(豫約完結權)이 행사되면 매도인은 소유권이전등기의무를 매수인은 대금지급의무를 부담하는 등 매매계약의 이행단계에 돌입하게 된다.

제척기간 도과
※ 사실관계
2000. 3. 2 피고 윤외○은 11.33/81.3지분에 매매예약을 원인으로 지분이전청구권가등기
2019. 1. 24 원고 의료재단은 공매를 원인으로 소유권이전등기 경료
※ 피고의 주장
이 사건 가등기가 피고의 전 소유자에 대한 공사대금 채권을 담보하기 위한 담보가등기이므로 10년의 제척기간의 적용을 받지 않는다(담보가등기라면 경락이 말소될 사항임).
※ 법원의 판단
매매예약 완결권의 행사 기간에 관한 대법원 판례는 채권에 대한 담보의 목적으로 이루어진 대물변제예약 완결권의 경우에도 마찬가지라고 할 것이다. 이 사건 부동산에 관한 매매예약 완결권은 매매예약일인 2000. 3. 2로부터 10년의 제척기간의 경과로 인해 소멸했다. 따라서 이 가등기는 원인무효이므로 피고는 가등기말소등기 절차를 이행할 의무가 있다.

채권담보를 목적으로 이 사건 가등기가 마쳐졌다고 주장하는 피고에게는 가등기담보권의 성립 당시 가등기담보권의 피담보채권이 존재했는지 여부 내지 소유권이전등기를 청구할 법률 관계가 있었는지 여부에 대한 입증 책임이 있지만 그 주장을 인정할 증거를 제출하지 못했다.