不動産登記制度의 公信力確保에 관한 硏究

부동산등기의 공신력 확보와 권리자·거래당사자 보호를 연구했다.

The approval of the public reliability considering real estate registration is a matter of deciding the priority between protecting parties which are involved in the trade by respecting real estate registration and protecting the parties which have the right. The law of Public reliability is protecting the trade even if it means sacrificing the parties which have the right. It can be said that the public reliability of registration is above the registry system. However, the public reliability is not accepted in Korea's registry system. Therefore, the third party which reliability the improper registration suffers the damage.

This study researches on the theory concerning the public reliability of real estate registration and cases of foreign legislation and lawmaking regarding public reliability with special emphasis on the ways to increase the public reliability. The improvement measures which are from putting together the matters which were discussed at the beginning are presented as result of this study. First, improper registration is caused by inconsistencies between real situation of real estate and relationships concerning the right because there is duality between the register and the cadastre.

So, the laws concerning the cadastre should be established and effective regulations concerning both register and cadastre need to be set up. Also, procedure should be established which includes the application form for networking of the registration and cadastre. Second, there is conformity matter concerning real relationship and registration when there are changes in the right and property. The security of trade can be jeopardize when there are inconsistencies between changes in the property and the register. When a certain registration is applied there need to be a inspection on the relationships concerning that registration.

When above process slow down registration process, it will damage the swiftness of the trade and also it is impossible in Korean system. Therefore, public officials's power over inspection should be strengthened and the way to register by certified paper should be established. Third, the innocent party which relied the register and acquired the rights should be protected when there is no controversy in fairness of the register. When the registered right is restricted to certain person, that restriction should be effective when the restriction is included or approved in the register.

Forth, the person, whose property right was violated caused by unaccountable invalidity of the property's register, fault in the cancellation, or changes in the cancellation, should be able to apply for the cancellation or recovery of that register. The right should not violate the right to claim for the compensation nor property right of innocent third party which was acquired by the register. Fifth, the party which could suffered damage by unaccountable register should by able to demand for rectification of the register.

Also, post relief system like the systems concerning compensation for the damage, remuneration for the loss, title insurance which is widely used in United States should be revised. The progress regulation other than the matters mentioned from above should be included as the additional clause in the civil law. As result, there is a need to accept public reliability to protect the third party which traded based on the reliability of the real estate register. In order to accomplish that, the system should be revised simultaneously.