登記請求權에 關한 硏究

부동산 권리 이전을 위한 등기청구권의 법적 성격을 연구하였다.

1. Registration claim is a right that a person who has a right to register can demand the cooperation for registration should be transferred. If the opposite person does not cooperate about the claim of registration, the transfer of rights in immovables does not happen. As the person who has a right to register can not get a real right without registration, he can institute a lawsuit against the person by whose name the registration should be transferred. In dealing with such a case, court should give a decision the person by whose name the registration should be transferred to cooperate about the registration transfer legally.

The person who has registration claim can apply for transfer of registration by the decision of court independently. The person who has a registration claim does not get a real right until his name registered on the register as rightful person. This is the spirit of the Civil law in korea, people often make troubles about registration claim. Registration itself is an important element in the transfer of rights in immovables. 2. The problem about the registration claim does not matter as a regulation, but it is important in theory and a judical precedent.

The registration claim is called a claim of credit in legal nature by judicial precedent, and it is divided into two kinds of theory as well. One is called a claim of real right, and the other a claim of credit. It would be more reasonable to explain about the claim of registration on the ground of two kinds of theory. In transferring of right in immovables caused by a legal act, we can call the registration claim a claim of credit, and when substantial relation and registration does not accord each others, we call it a claim of real right. According to legal regulation, registration is a basic element in transfer of right in immovables.

If we do not register for our real estate, we can not get a real right about our real property. A lot of people do not recognize the importance of registration in dealing in real estate, there are still some cases that some people buy and sell real property regardless of registration. The problem happens whether the person who bought real estate without registration can apply for registration afterwards. 3. We can really experience such many cases in dealing in real estate in our society. Such cases are invalid by legal regulation, however in case of getting the opposite’s appoval, they are regarded as valid by a leading case.

At the same time such cases are also recognized as valid by legal theory. I agree with such a point of view. We should make laws to prevent unregistration so that such cases might not happen systematically. We ought to have a system that they can be recognized as valid legally, and it is to be desired that we interpret as valid in reality as well.