부동산등기의 공신력에 관한 연구 = A study on public reliability of Real Estate Registration

부동산등기제도의 공신력 인정 여부와 개선 방향을 검토했다.

영문초록:Registration is a legal system whereby the current real estate owners are made public. The ideal pursued by the registration system is a harmony between precision and timeliness, which in turn is the source of its problem. In particular, under our legal system where any change of real right requires strict conditions for registration, it seems to be an almost consensus to attach public reliability to registration if conditions are mature, in consideration of the ideal aspect that safety of the real estate transactions should be ensured by announcement of the state of true rights and in respect of the actual economic needs for asset and mortgage securitization.

With such basic conceptions in mind, this study was aimed at reviewing the problems of our registration system and relevant foreign legal systems to put forwards the following suggestions for public reliability of the real estate registration.First, as a pre-condition for public reliability of registration, it is necessary to introduce the public notary system for certification of the registration instruments. If the substantial review system should be adopted, authenticity of registration would be ensured, but the procedure of registration would be delayed that much. The public notary system may be a solution to such a problem.

And if the causes of registration not true to the fact - registered unchecked under the formal review system - should be obligated to be written as public document, untrue registrations would be screened much. In short, if the public notary system should be adopted, the conflicts between substantial and formal review systems would be much relieved.Second, it is essential to authorize the registry officials to review the registration instruments substantially, while insuring any loss on the part of the rightful persons due to registry officials' mis-judgement.

Since the current Real Estate Registration Code allows registry officials to review the registration instruments only formally and thus, the officials cannot be responsible for any mistake in their formal reviews, the officials need to be authorized to review the instruments substantially, while rightful persons should be compensated for their loss thereof. To this end, the government is obliged to specify in the relevant code nation's responsibility of compensation for the rightful persons who suffer loss due to incorrect reviews by officials.

Third, it is deemed necessary to write or rewrite Cadastral Code and other codes regarding the land registry system and specify in Real Estate Registration Code some provisions for association between land registry and registration.

Currently, as the court uses cutting-edge technologies for the real estate registration system to be associated with relevant organizations for information services, namely since the secondary registration computerization project has been underway since 2004, land registry and real estate registration would be streamlined into a single system soon.Besides, in order to attach public reliability to the real estate registration, rightful persons' losses due to such a public reliability need to be compensated.

For example, the following reform measures may well be taken into considerations: a public announcement system for those who may interpose an objection for a certain period of time, use of Internet for the above announcement, arrangement of inexpensive registration correct procedures for rightful persons like that in Housing Tenants' Protection Code, typified instruments proving the bona fide (notarized instrument regarding client's ownership, architecture officials obligation to confirm the owner on the notarized instrument, tax administrator's confirmation of ownership on the construction cost report), etc.

For the real estate registration should conform to the true relationships of rights regardless of its public reliability and such a conformity would be a basis for its public reliability