不動産 物權變動에 관한 硏究

부동산 물권변동의 효력과 등기 요건을 검토한다.

As the article 186 of the civil law regulated that loss and profit and changes on the real right caused by a juristic act of the real estate is effective from the registration, it was already discussed that changes of the real estate's right by the juristic act is a most reasonable construction to be constituted and effective when two factors as real rights act and its registration is involved. Therefore, in view of regulations of our civil law, it is evident that only if the acquisition of real estate's ownership is registered it becomes present reasonable construction to be effective from between parties concerned and the third party.

However, as little mentioned above, it seems that the transaction and concerned parties opinions in dealing real estate and its ownership is transferred when exchanged their documents required for balances and the registration. Under such cases, it would not be hindered for stability of the transaction and the construction of legal theory. It would be rather proper and reasonable to the opinion of parties concerned from other factors and dealing stability's standpoint.

The reason is why the registration of the middle omission and dealing without preservation register of new building is invalid and can not be acknowledged at all times according to the interpretation of the principle of formalism, employed in our civil law. However, such dealings are actively performed in this society and only few parties concerned looked upon it as invalidity. Therefore, its effectiveness is acknowledged by our leading cases and most of our scholars opinions. But the thing is occurred from the relationship between the real right's act and the registration, not caused by the effectiveness of the ownership transfer between parties concerned.

Especially, because the public confidence in the registration according to the changes of real estate's right in our country is not acknowledged, it is appeared as the most serious interference for the transaction of real estate. In short, that the person who transferred his rights by the invalid person is able to acquire the right is corresponded to the exceptional case in legal theory and so the public confidence is not acknowledged without any regulations to acknowledge the public confidence in our civil law.

Under these circumstances, even though the principle of the formalism in the present civil law is strictly applied, the present significance of the regulation on the formalism in civil law could be reduced by half unless otherwise the public confidence in the registration is not acknowledged. Moreover, in dealing the real estate the most important thing can be understood as satisfied transactions between parties concerned and its stable transaction rather than by a certain legal act. These can be also explained from the fact that the middle omission registration system which can not be acknowledged in the present law is being acknowledged.

In that case, it would not be to much to say that regulations on the change of the real estate's right in our present civil law is provided for only more complicated problems in its construction. Therefore, the problem will be depended upon whether parties concerned should be focused on their protection or their stable transaction in the change of the real estate's right. In this respect, the promotion of the mutual coordination would be incorporated with the construction of our civil law rather than focused on protection for both parties. To do so,it is urgently necessary for the systematic device on the public confidential acknowledgement of the registration.

However, in order to acknowledge the public confidence in the registration, there appears many preconsiderations as its premise. That is, a preventive measure is required not to perform the registration by the invalid owner, if possible. For this purpose, it is important to revise the register and consider the register procedure carefully, but such considerations as substantial inspection criteria by the register officer would be also helpful. And because the registration itself should not be delayed due to careful register procedure, a systematical device to prevent such delays will have to be considered.

Further, a compensation for real owners who lose their rights should be provided as the post measure. In conclusion, the problem of the change of the real estate's right is directed to the problem of public confidence in the registration, and therefore it is stressed to introduce the public confidence in the registration for our country, as soon as possible.