不實登記의 原因과 對策에 關한 硏究 : 權原保險을 中心으로

부동산 등기제도의 공신력 결여와 권원보험을 통한 거래자 보호를 연구했다.

1. Now the accidents in transacting real property are becoming very serious, because of fraud or forgery of documents necessary for conveying title of real property, and so on. In relation to these problems, how the transferees in good faith on the troubled real properties are protected against original propertee is very important in our registration system, failing to adopt the principle of public faithfulness. So protecting these transferees is the purpose of this treatise, introducing the new system usedin America like title examination and title insurance.

By the way, the adoption of these American systom is very available, if thess are supposed to make the transaction of real property, in basis on failure in the principle of public faithfulness, safe. 2. The definition on the title examination viewed in the field of actual activity, differs according to each scholar. But it is better defined as follows : it is the act to stabilize a series of activities on the real property by making actual survey, confermation and judgement on the status of title concerning the real property. In accordance with this basic concept of title examination, the definition on the title examination is classified in the narrow, broad, broadest ones.

These 3 ways of classifications can be adequately applied in parallel with its objects and the necessity of the real property. Whereas, the scope of examination should be flexible and not stringent. The title examination is the act to examine and confirm the authenticity eventually and the details of the titles of real property, i.e. all the titles should require the authenticity. But present inevitability of this title examination is not fully understood, so that ths perception on the value of thetitle examination woould be imperfect.

A stress has to be made to exert best efforts so as to let the title examination with higher accuracy, ivhich in other words corresponds to the management procedures and the method of title examinations. The examination courses are as follows. Prior to the title axamination, the examiner should take into account of the applicant's requests, required scope in the title examination, hours needed and the possibility of data collection in order to make classification and establish plans for the title examination of objective real estate. After doing adequate reading that is to say the primary title examination, the examiner should start the activity of actual examination.

It is noted that an examiner is able to detect alarming factors and set up an orientation to be centered on expecially through reading and that sometimes, primary object of the examination can be attained only through reading. As the methods of examination, a method of seeing and hearing ara usad. In finding witness and material evidence, attention should be made to highter the coverage as well as to the dangerous instances. As examiner should know well about the alarming factors so as not to make failure in the activity of axamination. In the activity of examination, a check list should be drawn up to save time as well as not to make any omission. 3.

Title insurance is that against loss or damage resulting from defects or failure of title to a particular parcel of reality, or from the enforcement of liens existing against it at the time of the insurance. This form of insurance is taken out by a purchaser of the property or one loaning money on mortgage, and is furnished by companies specially organized for the purpose, and which keep complete sets of abstrac-ts or duplicates of the records, employ title-examiners, and prepare conveyances and transfers of all sorts.

A "certificate of title" furnished by such a company as merley the formally expressed professional opinion of the company's examiner that the title is complete and perfect(or otherwise, as stated), and the company is liable only for a want of care, skill, or dilligence on the part of its examiner : whereas an "insurance of title" warrants the validity of the title in any and all events. It is not always easy to distinguish between such insurance and a "guarantee of title" given by such a company, except that in the former case the maximum limit of liability is fixed by the policy is to make good any and all loss resulting from defect or failure of the title.

Eventually the title insurance means the company's guaranteeing that the title is to vested therein and it becomes a contract of indemnity. It is more than a guarantee of carefull search and skillful examination, it is a guarantee of the title of the owner, while it will show tne title subject to tho seme exceptions as would a certificate, it is an undertaking to pay any loss the customer should sustain should the record title prove to be otherwise than as shown therein. It means that the opinion of the company as to tne validity of the title guaranteed is fortified by its agraement to make that opinion good in case it mistaken and loss should ensue in consequence to the customer.