不動産登記의 公信力에 관한 硏究

부동산 등기의 공신력 인정 여부와 관련 법리를 연구했다.

In Korean civil law, while public reliability on pos session which notifies per sonal estate right publicity is recognized, there is no expressed regulation whether public reliability on real est ate registration which notifies real est ate right publicly is recognized. However, generally agreed theory and judicial practice say that public reliability is not recognizes. When Korean civil law was est ablished, the demand for public reliability on real estate registration was not so high.

Because the necessity for safe transaction and moment ary circulation, that is the necessity for mortage circulation due to economic growth has been highly increased since then, it becomes a hot issue of legislation theory whether public reliability on real est ate registration should be recognized in order to seek circulation guarantee of mortage right and the safety of real est ate transaction. In case of German, Swiss, and T orrens system in America, public reliability on real estate registration is recognized.

In France, it is not recognized, however, the safety of transaction is protected through not arizing source certificates and, as a result, it has the same effect that public reliability is recognizes. In Japan, public reliability on real estate registration is not recognizes but Japanese civil law supplement this weak point by introducing theories like analogical application in Article 94 Clause 2. But, Korean Civil Law does not give registration officers practical inspection authority, nor adopt not ary public system for source certificates and has problems with registration book and ledger.

In short, registration system is so cripply operated that there is high chances of false registration. Of course, current law has regulation on third party protection in case of realest ate right transaction, but, which is only a tempor ary remedy. Besides Korean civil law is totally powerless regarding to circulation guarantee of mortgage right. Here active countermeasure is required to secure the safety of real estate transaction and circulation guarantee of mortgage right. Fundamental solution is to recognize public reliability on real estate registration.

But if public reliability on real estate registration is recognized, the safety of transaction and circulation og mortgage right are guaranteed, but real rightful person loses his own right. Especially under current law which has high chance of false registration, the damage will be severe. So the system should be improved first to protect real rightful person by improving registration and ledger system, giving registration officers practical inspection authority, adopting registration source certificate and minimizing false registration.

In conclusion, it is desirable to seek the safety of transaction and the circulation guarantee of mortgage right by recognizing public reliability on real estate registration on condition that system is improved.