登記當事者와 登記上利害關係人에 관한 硏究 : 登記請求權의 作用을 中心으로

토지등기 당사자와 등기청구권의 법리를 연구했다.

The concept of the parties on Land Registration act of Korea is related with Claim for Registration. Claim for Registration is a difficult concept to analyze its essential meanings and legal features. Although this concept has been an object of study for a long time, little is revealed about its real meaning and legal structure. The purpose of this paper is to explore the origin of Claim for Registration and the concept of the parties in Land Registration Act and the Civil Law in Korea. It is not concerned here with a variety of problems of land registration and real property issues in the Korean Law.

In Korea, Claim for Registration is a theoretical method in other to solve the issues of real property. Claim for Registration is a practical right that the Holder of the right of registration require the Obligator for registration to apply a right in Land Registration Act. According to Land Registration Act and the Civil Code in Korea, it is said that people should not only strike a bargain but complete land registration for the completion of real estate transaction. The Holder of the right of registration hold, the so-called, "Claim for Registration" to Obligator for registration, who shall obey this claim.

The legal characteristic of this claim is practical right, which is originated from contract between the Holder and Obligator but there are no provisions on the Civil Code in Korea. This is because no one could prove obvious traits of Claim for Registration notwithstanding amounts of efforts. The origin and nature of parties in Land Registration Act become the persuasive solution to the meaning of Claim for Registration. This is because Claim for Registration results from a opposing structure between the Holder of the right of registration and Obligator for registration caused by Land Registration Act.

The claim itself includes two opposite parties and it is based on Joint-application system in Land Registration Act, which means collaboration of two parties in real property transaction. It is an official frame in Land Registration Act, but the frame has influenced on the Civil Law dealing with land transaction. The fact that two different parties have been made contract and registration by themselves is to provide self-regulation system for real property transaction. This is because a notary public is not able to infringe their contract unlike the other countries such as Germany, France and Switzerland.

This method is different from a large number of European countries, but it has been applied in Korea and Japan. In contrast to the parties revealing on the contract, the concept of the parties in Land Registration Act has its own legal characteristic because this concept is independently determined and defined by a register book. Therefore, there are often some discord between the parties in contract and parties in a register book. A indigenous solution to amend such discord is core content of Claim for Registration. In addition to this, it is fact that the Claim has played a role to amend this discord between contract and registration since Korean Civil Law has established.

Moreover, there is another party on Land Registration Act in Korea, the so-called, "the Third Party" in Land Registration. The Third Party in Land Registration, mortgagee, is based on contract and registration between the Holder and Obligator. The register book has no title to prove its confidence by the Civil Code and the Third Party has potential instability. Thus, Land Registration Act is not allowed to correct the context of the register book without the permission of the Third Party. However, the Third Party need to allow such correction conducted by the Holder and Obligator under necessary conditions construed by a practical law.

Korean Civil Code and Land Registration Act do not recognize the public trust of the register book and do not protect the Third Party formally by Land Registration Law. The conclusion to be drawn here is that Korean Civil Law and Land Registration Act maintained the validity of registration through the confrontational structure of the Holder of the right of registration, Obligator for registration, and the theory of Claim for Registration. This legal structure stems from a historical tradition in Korean Civil Law which does not allow to intervene a public notary, but permit the freedom of registration and contract by two parties.

This legal mechanism created the development of real property transaction based on the individual independency. However, this system has a probability of discord between registration and contract including unpredicted damage to the Third Party. On this basis, one might be able to presume the fact that Korean land registration system is unstable in some aspects, but Korea has a IT system and legal theory developed in terms of Land Registration, which is accomplished with remarkable outcomes. When it comes to the development of the IT system in the world, registration system are supposed to be developed rapidly in the close future.

As a result, Land Registration Act and the Civil Law in Korea will interact and cooperate each other in case legal systems in land registration support not only freedom of real property contract but also technical methods, which represent the contents of real property contract more precisely and perfectly. 부동산등기는 우리의 일상생활과 가장 밀접한 관계를 가지고 있는 법률분야의 하나라 할 수 있다. 등기제도는 토지와 건물에 대하여 권리의 발생·취득·변경·처분권의 제한 또는 소멸하는 법률관계를 일견하여 알 수 있도록 공시하여 그 권리를 보호하고 거래를 신속하고 안전하게 하도록 하는 것이 목적이다. 이러한 등기제도의 목적은 단순히 등기절차의 확립만으로 이루어지는 것이 아니라 민법이라는 실체법과의 관련성을 통해 이루어진다. 등기제도의 본래적 기능은 대량적, 획일적인 부동산 거래를 공시하여 물권을 부여하고 대외적으로 거래의 안전을 보호하는 것이라 할 수 있다.

그러나 실체권리관계와 등기는 일정부분 혹은 어떤 경우에는 불일치 할 수 있는 여지가 생기며, 이를 최소한으로 줄이고 그 불일치를 해결하는 것이 실체민법과 부동산등기법의 역할이라고 할 수 있다. 본 연구는 그러한 실체민법과 부동산등기법의 역할과 기능에 주목하면서 한편으로 독립적으로 기능하는 등기절차법과 실체법의 관련성에 우선 주목하였다. 이러한 인식을 바탕으로 우리 민법이 취하고 있는 형식주의 입법과 등기절차의 이론적 정합성이 무엇인지에 대해 다른 국가의 부동산물권변동제도와 등기제도를 바탕으로 고찰하였다. 이러한 비교법적 연구를 통하여 우리 민법이 취한 형식주의 입법이 같은 형식주