효율적인 權利分析을 위한 登記簿의 개선방안에 관한 연구

부동산 권리분석의 효율성을 높이기 위한 등기부 개선 방안을 연구했다.

From ancient times mankind has the tradition that a certain public behavior besides contract is required in real estate transaction. For example, when anyone deals in real estate, he needs to perform public ceremony or to register right in official book, or to file documents in public office. These public ceremony, official book, filed documents and etc, can be named 'official notice'. From this point of view, 'register book' in Korea is a kind of official notice. The shape and function of official notice has changed and developed constantly for a long time. Nevertheless, studies on the development process of official notice seem to have inclined to ontological research.

But it is reasonable that official notice should be inquired into with emphasis on social function, for it is one of social systems. Through this way, social significance of official notice can be evaluated, and improvement of it can be achieved. The function of official notice can be classified into three categories in the aspect of historical process : 'function as the means of verification', 'function as the means of public announcement', and 'function as the means of title analysis'. This historical process can be confirmed by comparing and examining each country's legislation.

The focus of this study is to find out the fact that register book performs function as the means of title analysis in modern society, and to pursue the improvement of register book according to such function. As society develops, the information that is needed in real estate transaction becomes various and complex in legal and economic aspect. The variety and complexity of information makes it difficult to collect and analyze the information, so legal suits occur more frequently. In order to prevent legal suits, it is required to help persons to collect and analyze information easily and effectively.

Register book in Korea is comparatively well equipped according to tradition of continental law. But it is not yet sufficient to make title analysis effective. One of the methods to improve register book of Korea is to unify the form of it, because when the form of it is plural and complex, title analysis through it may be not effective. The other is to include all required informations into register book, because when informations are scattered in other places aside from register book, title analysis will be more difficult.

The unification and inclusion of register book can help it to perform function as the means of title analysis effectively, and help to prevent legal suits in real estate transaction. (1) The methods to unify the form of register book can be as follows : one is to unify land register book and building register book, the other is to unify the arrangement of registry, and the third is to unify registry object of similar registry in appearance. 1) The purpose to unify land register book and building register book is to grasp clearly many legal problems which are due to the dual system of land and building in substantive law.

In addition, the unification may reduce the expense resulted from coexistence of the two register books 2) The attempt to unify arrangement of registry is to check effectively order of titles with opposing power through register book. Priority of title is decided according to receipt order of registration. However, the division of 「gapgu」and「eulgu」in register book of Korea causes confusion in seizing order of registry. Therefore 「gapgu」and「eulgu」should be unified so as to find out receipt oder easily. 3) To unify the registry object of similar registry in appearance is necessary. There are some registries which are similar in appearance but quite different in legal effect.

For example, lease registry and 「jeonsegwon」registry are not distinguished each other obviously in appearance in spite of difference in legal effect. And the kinds of lease registry are five but legal effects are quite different. So as to confirm easily the fact that each registry has different legal effect, it is needed that the registry object of each registry should be unified. (2) The contents of register book should be inclusive in physical, legal, and economic aspect, in oder to enhance the efficiency of title analysis. 1) Register book should include information of physical aspect.

Up to now, there have been discussions to unify register book and land-book, from the point of convenience of book management. But it is more important that two books should be unified in order to reduce confusion of title analysis stemmed from their separation, and in oder to include the information of physical aspect in register book sufficiently. 2) Information of legal aspect should be also included in register book. To include all titles with opposing power in register book is necessary for effective title analysis. To achieve this purpose, the methods as follows is required.

First, abnormal official notices based on 'house lease protection law' and 'store lease protection law' should be phased out. And all titles in such abnormal official notices should be included into register book. Abnormal official notices are 'resident registration', 'business registration', 'fixed date' etc. Official notices above mentioned cannot perform even 'function as the means of public announcement', to say nothing of 'function as the means of title analysis'. Because these neither contain the contents of lease contract sufficiently, nor announce them to anyone. After all, these notices may damage severely the security in real estate transaction.

Second, even though real right transfers occur in accordance with provision of law, they should be registered to obtain opposing power. Article 187 of Korean Civil Law prescribes that real right transfers in accordance with provision of law shall not require registration. But when such transfers have opposing power without registry, they may threaten transaction security. Therefore, the transfer by judgment, surface right in cus