不動産登記의 公信力에 관한 硏究

부동산등기 공신력의 필요성과 부실등기 문제를 연구했다.

The real estate registration system is that of public notification employed by modern law for the purpose of insuring security and smoothness in real estate business. Therefore, if we want to have its fundamental purpose carried through, we have to have the registration that fits in necessarily with those of sincere rights. In practice, however, there always occur many insincere registrations, that is, the registrations which are not coincident with true registration, and this point becomes a factor obstructing security and smoothness in businesses.

To solve this problem, West Germany, Switzerland and another nations taking Torence registration system are authorizing the public confidence in real estate registration, and there were also such attempts in France, Japan and so on. Authorization of public confidence in registration is required for the circulation of real estates and especially in order to secure the flowing of mortgage.

Here, it should be pointed out that a successful introduction of this system requires such preconditions like the well consolidated real estate registers, fully equipped conutermeasures against in sincere registration, and prepared sub-systems enabling to compensate a true person suffered a loss in his rights, because there will be occasions sincere right person falls a viction to authorized confidence in real estate registration. In this sence, strategies for the better improvement and introduction of several sub-systems, the following strategies are also required in Korea in order to authorize the confidence in real estate registration.

First, it is necessary to consolidate cadasters and registers, and to unify registers. More specifically, all the national land should be processed by cadastral survey and also registered, and further, cadastral and registers have to be so adjusted as to be completely coincident. For this, a principle of obligatory registration must be employed, and computerization of registrational business is also required. And, again, unification of house register and land register would be useful as well. Second, procedure of application for registration and its inspectional system should be improved. In long-range consideration, registrational property deed must be regulated so as to be motorized.

But, as of now, separate special measures are necessary, since notary public population tends to concentrate in large cities and problems pertaining to the insincere registrations in the past and those of concealed government property are not likely to be solved. As for the registrational application based on a letter of guarantee, reinforcements of guarantor's prerequisites and a procedure of pre-notification before registration should be satisfied. Third, the little examination system has to be introduced. Then, this will reveal insincere registrations occurred in the past facilitating the correction of them.

Also, it may be expected that this will serve for the prevention against insincerity until the introduction of the registrational public confidence system, and that registration completed the title examination process will be able to presumed as to have some public confidence. But, responsibilities for the loss-compensation in the title examination process is being regarded as to be problematic. Fourth, the title insurance system for original possessor of real property should be introduced.

If introduced, responsibility in the title examination system may be secured, protection of the third person in good-will is expected to contribute to the security and smoothness of transactions, providing promotional effects on the circulation in mortgage and on the supply of real estate, and preconditions required in authorizing registrational public confidence will be more quickly constituted. Unfortunately, however, there also exist such prerequisites like the curtailment of real estate transactional costs and also the reduction of interest of the persons including an insurance company, an attorney, a judical counselor, an authorized real estate broker and so on.

Therefore, positive supports from the government and the continuous study and examinations for the required problematic sources by the government and academic circle as well are thought to be conducted.