登記請求權에 관한 硏究 : 특히 取得時效의 경우에 관하여

부동산 취득시효와 등기청구권의 법적 성격을 연구했다.

They say that Korean civil law adapts German legal System(registration System) in the conveyance of real property. It is necessary for the conveyance to make an agreement about real property and to registrate. So the registration is directly related the conveyance. The claim to the registration is defined that the grantee asks the participation of the grantor in registration-process, Hereby I want to eludidate my opinion about the nature and the cause of these claims. In general these claims are divided into four.

In the case of the voluntary transfer, it is much too quarrelsome, that is, its cause is the obligation or the real agreement or the effect of real expectative right, its nature is personal or real. I conclude the cause is directly from the obligation, for example from Art.568 (Korean civil law), its nature is personal. In the discord between the real right and the registration, its cause is from the effect of the real right and its nature is real. And in the case of the lease and repurchase, its cause is from the regulations in the civil law, its nature is personal.

In the positive prescription, the claim is indirectly regulated that the possessive person acquires the ownership by way of the registration(Art. 245, 1 Korean civil law). By the way, Korean Supreme Court is in that even if it were the completion of positive prescription, the prescriptive person wouldn't stake out a claim against the grantee handed over the real right (including the registration) from the owner. However, this positive prescription is one of those prescription system in general whose meaning of existence is to promote the stability and to the security of legal life in society by recognizing the value of a lasting actual state and elevating it to a legal right.

And in German legal System it is the voluntary transfer as well as the involuntary transfer which BGB(German civil law) and ZGB(Swiss civil law) is regulated, the one is that the real right is not to be conveyed without the registration, but the other is that the real right is to be conveyed without the registration. It is not necessary for the positive prescription which is a kind of involuntary transfer to registrate. Therefore I justfy that it will be amended to "be by way of the registration", and also Korean Supreme Court will convert that the prescriptive person will stake out a claim with the positive prescription against the grantee handed over from the owner.

So I affirm the nature of claim to this positive prescription is not personal but real.