登記請求權에 관한 硏究 = (A) Study on the right of claim for registration

부동산 물권 변동을 공시하는 등기청구권을 연구했다.

The purpose of registration is to exactly publish the transfer of a real right and to protect one's private property and work for the good of the public and keep the security of transaction. Even under Article 187 of the Civil Law adopting an officialism「a succession, a levy, a decision of the court, auction and the others provided by law, the acquisition of the real property does not need to take one's registration」 is expressly provided in the statute and acknowledged an exception under 186 of the Civil Law. It is necessary to register when clause dispose expressly provide in the statute. The problem is how to register specifically, and the hard core is the claim of the registration.

The Real Property Registration Act, about the motion of registration adopts a joint motion (Article 28 of the Registration Law of Real Property), registration must be claimed with a rightful claimant of registration and a obligator of it together. Registration is made by the joint motion as a general rule, if both a rightful claimant of registration and a obligator of it don't agree with mutual cooperation, for that reason registration is not possible. It is necessary to demand to acknowledge the cooperation of claim of the registration to run the registration system smoothly.

In the claim of the registration, the theory of it has been in a state of confrontation about the origin of occurrence and its nature. On the sale of real property, one's (the right of) ownership transfer to purchaser, besides the agreement of purchase and sale, if a transferor considers that it is a legal act to transfer his(the right of) ownership to purchaser, whether he acknowledges or not the originality of the act of real right, he should obtain the claim of the registration about the origin of its occurrence from the performance of an obligation and understand it as the same nature of obligation.

If the relation between right and registration don't agree, the claim of the registration will occur as the effect of a real right, Its nature is considered as the real right of the claim of the registration. In case of prescription acquisitive, required as an exception Article 186 of the Civil Law, specifically provided under Article 245 of the Civil Law. At this time the claim of the registration by the statute, the characteristic can be a claim of obligatory. The right of lease and the right of repurchase are entered into by the claim of obligatory and agreement. There is no different view of this matter.

For the abridgment of registration, registration will be a third person's internal terms that might be a problem in an order of business. Registration is terms of effect considered as the act of a real right and it will not be a problem under the Civil Law in force. But the abridgment of registration simplified the registration process and saved time. If it publishes the present, true relationship of rights in the abridgment of registration, we don't have to say it is not invalid. The claim of registration concerned in extinctive prescription, it will be different whether by the claim of obligatory or the claim of real rights.

If between the real relationship and registration don't agree, the claim of registration will have the nature of a real rights, it will not interrupted by acquisitive prescription as long as the real rights exist. But in case of the transfer of a real right of real property and the right of lease and the right of repurchase of real property, the claim of registration is regarded as the claim of obligatory and it will take 10(ten)years for extinctive prescription, It is reasonable as a nature of the claim of registration. In terms of acquisitive prescription unreasonable results will occur if we cannot protect someone who possessed his real property more than 30 years rather than 10 years.

If one possess his real property continuously by 「a plea of the transferred possession by sale」 the purchaser who received the object should be protected even in the extinctive prescription.

목차 ABSTRACT = ⅳ 제1장 序論 = 1 제1절 硏究의 目的 = 1 제2절 硏究의 方法 및 範圈 = 3 제2장 登記請求權의 意義 및 登記制度 = 4 제1절 登記請求權의 意義 = 4 제2절 登記에 관한 各國의 立法例 = 5 Ⅰ. 獨逸民法 = 5 Ⅱ. 프랑스의 登記制度 = 10 Ⅲ. 스위스의 登記制度 = 13 Ⅳ. 日本의 登記制度 = 15 Ⅴ. 토렌스의 登記制度 = 16 Ⅵ. 우리의 登記制度 = 18 제3절 登記請求權의 本體 = 20 Ⅰ. 登記權利者와 登記義務者 = 21 Ⅱ. 共同申請主義와 單獨申請主義 = 24 Ⅲ. 登記申請에 必要한 書面 = 27 Ⅳ. 登記申請에 대한 審査 = 30 제3장 登記請求權의 發生原因과 法的 性質 = 32 제1절 法律行爲로 인한 不動産物權變動의 경우 = 32 Ⅰ. 債權的 請求權說 = 33 Ⅱ. 債權에 準하는 權利라는 說 = 35 Ⅲ. 物權的 性質說 = 35 Ⅳ. 判例 = 36 Ⅴ. 檢討 = 37 제2절 登記와 權利關係가 一致하지 않는 경우 = 38 Ⅰ. 眞正名義回復을 原因으로 한 所有權移轉登記請求權 = 40 Ⅱ. 登記引受請求權 = 41 제3절 取得時效의 경우 = 42 Ⅰ. 規定의 妥當性 = 43 Ⅱ. 學說 및 判例 = 44 Ⅲ. 檢討 = 45 제4절 기타의 경우 = 47 Ⅰ. 不動産賃借權의 경우 = 47 Ⅱ. 不動産還買의 경우 = 48 제4장 中間省略登記의 有效性과 登記請求權 = 49 제1절 中間省略登記의 有效性 = 50 Ⅰ. 學說 = 51 Ⅱ. 判例 = 55 Ⅲ. 檢討 = 55 제2절 中間省略登記請求權 = 57 Ⅰ. 學說 = 57 Ⅱ. 判例 = 59 제3절 中間省略登記와 特別法