부동산거래의 안전확보를 위한 연구 = Study regarding Safety Secure of a Real Estate Transaction

부동산 거래 안전을 위한 등기와 인증제도의 개선 방안을 연구했다.

This thesis considered the improvement plan carefully for safety of a real estate transaction on register of real property, system of authentication certificate of one's seal, substantial right to the investigation of greffier, and so on. And the rules and theorization that protect third party that trusts incorrect registration were reviewed under current law that public confidence on register of real property is not admitted.

The research result for safety of a real estate transaction on register of real property and prevention of incorrect registration is as in the following. The acquisition, loss of, or any alteration in, a real right by a juristic act over an immovable takes effect upon its registration. The acquisition of real rights over immovables through inheritance, expropriation, judgment, auction and others stipulated in provisions of law shall not require registration. Provided, that the immovable shall not be disposed of unless it has been registered.

And registration shall be made for the indication of real estate and for the preservation, transfer, creation, change of, or restrictions on disposal or extinguishment of any of the following rights: 1. Ownership 2. Superficies 3. Easement 4. Rights to lease on a deposit basis 5. Mortgage 6. Pledge of rights 7. Security rights over claims 8. Leasehold interest. Registers shall be classified into land registers and building registers.

When a register is compiled, one registration record shall be made for one parcel of land or one building. A sale shall become effective when one of the parties agrees to transfer a property right to the other party and the other party agrees to pay the purchase-price to the former. And One of the parties to a bilateral contract may refuse performance of his own obligation until the other party tenders performance of his obligation. Provided, that this shall not apply where the obligation of the other party is not due.

Therefore, although down payment and middle payment by a real estate transaction after conclusion of a sales contract is paid, a buyer should pay balance to receive document for registration of ownership transfer. Accordingly, a buyer feels uneasy for the period. The prior disclosure system should be introduced to solve slippery situation of a buyer, secure safety of a real estate transaction and improve trust of register of real property. The register of real property is recorded by application for registration by Registration of Real Estate Act.

Unless prescribed otherwise by any Act, registration shall be applied jointly by a person entitled to file for a registration and a person obliged to file for a registration. The Principle of Application of this act is as in the following. Article 22 (1) Registration shall be made by application of an interested party or on the entrustment of a public office. (2) Unless otherwise prescribed by any Act to the contrary, provisions concerning registration by application shall apply mutatis mutandis to the procedures for registration on entrustment. (3) Anyone who intends to file for a registration shall pay fees, as prescribed by the Supreme Court Regulations.

And Unless prescribed otherwise by any Act, registration shall be applied jointly by a person entitled to file for a registration and a person obliged to file for a registration. Especially, this act is to prescribe matters concerning the registration of real estate. The registration of real estate should be recorded by force within a reasonable compass to achieve purpose of system on the registration of real estate. Registration shall be applied by any of the following two methods. 1. An applicant or his/her agent goes to a registry and submits documents stating application information and accompanying information.

Provided, that when such agent is an attorney (including a law firm, a law firm with limited liability, and a judicial association) or a certified judicial scrivener (including a corporation of certified judicial scriveners and a corporation of certified judicial scriveners with limited liability), he/she may require a clerk prescribed by the Supreme Court Regulations to go a registry and submit such documents. 2.

Application information and accompanying information are sent via a computerized data processing system, as prescribed by the Supreme Court Regulations (limited to the type of registration designated by the Minister of Supreme Court Administration). More than 95 percent of the register of real property were recorded by an attorney or a certified judicial scrivener. Therefore, theses agent neeed to identify whether the parties want to record the register of real property to prevent incorrect registration.

And an attorney or a certified judicial scrivener should submit copy of resident registration of the parties to prevent illegal issuance of authentication certificate of one's seal that counterfeits identification. Meanwhile, the notice of application on authentication certificate of one's seal by an attorney or a certified judicial scrivener should be reported to prevent illegal forge of authentication certificate of one's seal. Civil Act Article 108 (Fictitious Declaration of Intention in Collusion) (1) A fictitious declaration of intention made in collusion with any other party shall be null and void.

(2) The nullity of a declaration of intention as mentioned in the preceding paragraph cannot be set up against a third person acting in good faith. Civil Act Article 108 (2) should be applied by inference under the existing system and certain condition for safety of a real estate transaction on register of real property because public confidence on register of real property is admitted. Any person who causes losses to or inflicts injuries on another person by an unlawful act, intentionally or negligently, shall be bound to make compensation for damages arising therefrom. Therefore, the real a rightful person that is deprived right

차 례 제1장 서론 1 제1절 연구의 목적 1 제2절 연구의 범위와 방법 4 I. 연구의 범위 4 II. 연구의 방법 6 제2장 거래안전을 위한 각국의 부동산 등기제도 8 제1절 서설 8 제2절 대륙법계 국가의 물권변동과 공시제도 9 Ⅰ. 로마법 9 Ⅱ. 독일 10 1. 서 10 2. 연혁 11 3. 부동산물권변동과 등기관 심사주의 12 4. 등기의 효력 16 5. 등기에 대한 이의제도와 국가배상제도 18 Ⅲ. 프랑스 21 1. 서 21 2. 연혁 22 3. 등기절차 24 4. 손해배상제도 26 Ⅵ. 스위스 27 1. 서 27 2. 등기절차 27 3. 등기의 효력 30 4. 등기정정제도와 손해배상 책임 31 제3절 영미법계 국가의 물권변동과 공시제도 33 I. 서 33 Ⅱ. 토렌스 시스템 34 1. 서 34 2. 부동산거래실태와 등기제도(영국의 경우) 35 3. 등기절차 37 4. 등기의 효력 39 5. 피해보상제도 40 6. 사전공시제도(영국, 오스트레일리아) 40 7. 토렌스 시스템의 문제점 47 Ⅲ. 레코딩 시스템 49 1. 서설 49 2. 부동산거래의 형태 50 3. 권원조사 51 4. 권리보험 52 5. 에스크로우(Escrow) 제도 53 제4절 일본의 부동산 등기제도 55 I. 서 55 Ⅱ. 연혁 56 Ⅲ. 등기식별정보 58 1. 개념 58 2. 등기식별정보의 통지와 제공 59 3. 등기완료증과 등기식별정보의 차이 60 Ⅳ. 사전통지제도와 자격자대리인의 본인확인 정보제공 61 1. 서 61 2. 사전통지 제도 61 3. 자격자대리인에 의한 본인확인 정보제공 63 Ⅴ. 본인확인 65 1. 등기관에 의