未登記不動産에 관한 硏究

미등기 부동산의 현황과 등기 관련 문제를 검토했다.

This thesis is about the unregistered real properties. There are many unregistered real properties and the registers of real properties disappeared due to the inevitable situations such as Japanese invasion and Korean War. Thus some problems can rise: When these real properties are traded, the nominal possessor of a register and the real possessor can be different; When the preservation registration is not made by not completing a building because of some problems happened while constructing it newly, there can be many difficulties exerting the right of property. In korea, there are many unregistered real properties and many problems have been raised continuously concerning them.

Even though the access to the research materials was difficult because there are not many studies about this, this thesis is made up based on several other scholar's theses, law professionals' research materials and the precedents of the Supreme Court about the unregistered real properties until now. In the first chapter, as an introduction the general issues and the studies of each case are discussed, and in the second chapter about the system of registration of real property and the unregistered real properties, the history of the system of registration of real property in Korea and the causes and types of unregistered real property are discussed.

Each case of unregistered real properties is discussed in chapter 3. In the first section of this, the ways to confirm the right of property about the unregistered properties and the cases in which the confirmation of the right of property is needed are reviewed. The the second section is on the claim of the transfer registration of the right of property. Usually the right of property of unregistered real property is acquired through assessment, positive prescription, inheritance, trade, exchange, grant, and acceptance. So the causes of the acquisitions and the details of them are explained.

When the claimer acquires the right, the procedure for requesting of preservation registration or transfer registration the claimer can use toward the other person lawfully and the preservation procedure on the claim right on the transfer registration of property right about unregistered real properties are also studied. In the third section on the cancellation of nominal trust, the way to cancel the nominal trust about the real estate of family and the spouse excepted from the other law-related things concerning nominal registration of the real possessor and the problems and the other law-related things concerning nominal registration of the real possessor of real estate are shown.

In the fourth section, the auction of the unregistered real property and the seizure validity on unregistered buildings are shown. In the fifth section the compulsory execution is discussed. According to the Article 527, Clause 2, number 1 of Civil Proceedings Act, the objects to be executed are determined by the proceedings of the execution of corporeal movables among the objects which has some problems with the existing executing proceedings, but in 1995 the judgement of the Supreme Court found this article had some problems in interpreting.

So the law-related things about this are reviewed in detail and the execution proceedings of uncompleted buildings by the procedures of corporeal movables are studied. In chapter 4, general review is made about this thesis as a conclusion.

目次 第1章 序論 = 1 第2章 不動産登記制度와 未登記不動産 = 4 Ⅰ. 意義 = 4 Ⅱ 登記의 意義 및 種類 = 5 Ⅲ. 未登記不動産의 發生原因과 類型 = 5 第3章 未登記不動産의 類型別 論議 = 8 第1節 未登記不動産에 대한 所有權確認 = 8 Ⅰ. 意義 = 8 Ⅱ. 訴訟에 의한 所有權確認을 구하는 方法 = 9 Ⅲ. 우리 大法院判例의 態度 = 13 第2節 未登記不動産에 대한 所有權移轉登記請求 = 14 Ⅰ. 意義 = 14 Ⅱ. 所有權移轉登記請求權 = 15 Ⅲ. 未登記不動産의 所有權移轉登記請求權에 대한 保全處分 = 31 第3節 未登記不動産에 대한 名義信託解止 = 36 Ⅰ. 名義信託의 意義 = 36 Ⅱ. 未登記不動産에 대한 名義信託의 可能性 與否 = 37 Ⅲ. 名義信託의 解止方法 = 38 Ⅳ. 不動産實權利者名義登記에 관한 法律의 主要內容과 法律關係 = 40 第4節 未登記不動産에 대한 競賣 및 未登記建物에 대한 押留의 效力 = 46 Ⅰ. 有體動産으로 押留된 未登記建物에 대한 不動産强制競賣 許否 = 46 Ⅱ. 抵當土地上 未登記建築物一括競賣와 不動産登記法 제 131조의 書面 = 53 Ⅲ. 區分建物에 대한 競賣와 未登記垈地權의 歸屬關係 = 55 第5節 未完成建物에 대한 强制執行의 方法 = 59 Ⅰ. 意義 = 59 Ⅱ. 民事訴訟法 제527조 제2항의 「登記할 수 없는 土地의 定着物」의 意味 = 60 Ⅲ. 「獨立하여 去來의 客體가 될 수 있는 것」의 意味 = 66 Ⅳ. 有體動産執行方法에 의한 未完成建物의 執行節次 = 67 Ⅴ. 大法院 1995. 11. 27. 선고, 95마 820 결정에 대한 檢討 = 69 第4章 結論 =