實體關係의 法理에 관한 硏究 : 不動産物權變動을 中心으로

부동산 물권변동에서 등기의 효력과 실체관계 법리를 연구했다.

Korean civil law adopts a formalism with respect to changes in real rights to make clear the existence/non-existence of real right change and the time occurred, and unify the legal relation among the parties concerned and toward a third party. Thus the change in real right does not become effective just by a declaration of intention for that purpose until it is made public either by a registration in case of realty trade (Article 186, Civil Law) or a transfer in case of movables (Art. 188).

Although the current civil law adopts a formalistic legislation system, it differs with the German formalism in precedent cases and legal provisions of ①title trust,②transferred security,③provisional registration security,④transfer time of assets contributed to a foundation,⑤the other party in a building demolition case, etc.

Especially the precedent cases deal with the following issues that are hard to settle simply by applying the formalism of real right change: ⅰ) revocation, cancellation, and registration of legal act, ⅱ) positive prescription and registration, ⅲ) "substantial right relation" as a requisite for curing defects in registration, ⅳ) misappropriation of invalid registration, ⅴ) skipped registration, ⅵ) title trust, ⅶ) scope of corrective registration (identity of a building and its registration), ⅷ) provisional registration to preserve claim for registration.

the above cases, real right ownerships are separately applied to the legal relation among the parties and toward the third party, failing to serve the purpose of the Article 186, Civil Law to unify the legal relations. That is, in addition to the registered person, substantial rights are granted to unregistered shareholders. The root of these legal concepts are derived from Japanese judicial precedents that ruled that real right change is effected at the time of effecting a contract as long as no special reason exists, while denying the independence of the act of real rights in the light of the intention theory.

These Japanese entity relation theories were handed down to the old civil law in Korea. Nevertheless the Korean civil law adopted the formalism with respect to the real right change, the supreme court still uses the remains of old law era even after the current civil law is enacted. It seems that the precedents of old civil law era continue to the present time. The typical example is the theory of 'registration matching the entity relation'. The legal theory is that although a realty registration has a defect in its procedure, cause, or form, it is a valid registration that matches the entity relation as long as there is an entity right relation identical to the form publicly announced.

Regarding the ground of the theory, precedents of the old law era found it from the intention theory, and the supreme court rules that even viewing from the current civil law that takes formalism it shall be treated as same as in the intention theory.

Then the supreme court defines the entity relation as "if there is a contract for the purpose of transferring realty ownership with no legal defect in realizing the claim for registration between parties of the contract and thus there is no reason for the party obliged for registration to deny performing its duty, and if an assignor gives in accordance with the contract an assignee the full control of a realty, the assignee will gain all the rights to use, profit, and dispose the realty that forms the actual content of the control which is integrated into an ownership".

most academic theories do not agree to the 'entity relation' or 'registration that matches the entity relation theory in the judicial precedents. In fact, with respect to the acceptable scope of the 'registration that matches the entity relation', theories are divided and take narrower scope than that of the precedents. Moreover, there is an opinion that if we take the formalism in the change of real right, the concept of 'registration that matches the entity relation must be denied.

According to this, under the old civil law that takes intention a change of real right takes effect simply by a declaration of the party's intention, but under the current civil law unless the party makes registration its declaration of intention creates no change in real right under the substantial law. Thus there can be no substantial change in the right. The theory of the precedents, which tells even if a registration has a defect in substantial or formal requirement it is valid because it matches the present true state of rights, ignores or denies the legal theory of real rights under the new civil law and is not acceptable.

Furthermore, some scholars have a weak understanding of the precedent theory of entity relation as they stick to their own theories. The realty registration law provides for both joint application system and the successive registrations in order to avoid fake entries that may be caused by formal inspection of the registry officer, and to enhance the trustworthiness of registration. Nevertheless, there are lot of cases of registrations made without meeting full requirements such as registering with a different cause than the real one.

The supreme court, in its judgments, views that those registrations that failed to meet the validity requirements are valid as long as they match the entity relation.

In short, it is inevitable that many registrations that match the entity relation will be made due to the formal inspection right of the registry officer, and there are many cases of judgment by the supreme court and the lower courts. view of the registrations that match the entity relation that are mass produced under these circumstances, civil law changed the real right change from the intention principle to the formalism and at the same time provided transit provisions in the Article 2 and 10, Supplements to require public announcement for 6 years for realty and 1 year for movables. Besides, a special law

제1장 서론 1 제1절 연구의 배경과 문제의 제기 1 Ⅰ. 연구의 배경 1 Ⅱ. 문제의 제기 9 제2절 연구의 범위와 논문의 구성 11 Ⅰ. 연구의 범위 11 Ⅱ. 논문의 구성 14 제2장 실체관계 법리의 연혁 및 그 발전 16 제1절 실체관계 법리의 형성 16 제2절 일본에서의 논의 17 Ⅰ.실체 내지 실체적 권리관계 17 1. 일본 민법 제176조에서의 쟁점 17 2. 물권행위의 독자성에 관한 논의 18 3. 물권변동의 시기에 관한 논의 21 Ⅱ. 실체관계와 대항력 30 1. 실체관계와 대항력의 관계 - 일본 민법 제176조와 제177조의 관계 30 2. 일본 민법 제177조의 적용범위 - 등기의 해태의 효력 32 3. 등기청구권의 법적 성질 34 4. 실체관계의 범위에 관한 판례의 입장 35 Ⅲ. 실체관계에 부합하는 등기 35 1. 학설의 개관 35 2. 판례의 동향 38 3. 구체적인 적용례 42 제3절 우리나라에서의 전개 51 Ⅰ. 서 51 Ⅱ. 판례와 학설의 전개 52 1. 판례의 동향 52 2. 학설의 입장 56 Ⅲ. 실체관계의 구성 57 1. 실체관계의 성립요건 57 Ⅳ. 실체관계의 구체적인 발현 72 1. 등기를 갖추지 못한 실질 권리자의 보호 72 2. 등기의 하자를 치유하는 요건으로서의 실체관계 부합 72 3. ‘실체적 권리관계에 부합하지 않는 등기’ 유형에 대한 정당성 검토 75 4. 기타 실체적권리관계가 문제되는 경우 75 제3장 등기를 갖추지 못한 실질 권리자의 보호 법리의 검토 79 제1절 서설 79 제2절 미등기매수인의 보호 80 Ⅰ. 실체관계 법리에 의한 미등기매수인 보호 80