부동산등기법상 토지합필등기 및 그 특례 규정의 문제점

토지합필등기와 관련 특례 규정의 문제점을 분석했다.

Korea Real Estate Registration Act grants for the combining lots of lands or combining of Buildings. The grounds for restricting combining of lands or buildings are provided in Art. 37 and 42 of Real Estate Registration Act and Art. 80 of Act on Land Survey and Management –Cadastral Records Act-, etc. These restrictions are based on the nature of real estate right that a security right can not be granted on the certain partial part on real estate in Korea, unlike usufructuary rights. Art. 37 of Korea Real Estate Registration Act provides as follows.

With respect to land on which rights other than ownership, superficies, rights to lease on a deposit basis, leasehold interests, and easements on the subservient estate are registered, combination of lots of land shall not be registered. But, this shall not apply where mortgages are created over all lots of land with the same grounds for registration, date and receipt number. This provision is applicable with respect to building combinations. This paper points out that insufficiency of restriction for registration of combination on real estate, mortgages are created over all lots of land with the same grounds for registration, date and receipt number.

Article 38 of Korea Real Estate Registration Act provides special exceptions for combining lots of land. Even where the transfer of ownership is registered on part of land among land combined before the combination of lots of land is registered but after procedures for combining the lots of land under the Act on the Establishment, Management, etc. of Spatial Data are completed, registered owners of the relevant land may apply for the registration of combination of lots to co-own the land after combination of the lots if interested parties consent thereto.

Even where the transfer of ownership or establishment of security right, one of lands among the lands combined in registry book before the combination of lots of land is registered but after procedures for combining the lots of land under the Act on Land Survey and Management and Cadastral Records are completed. This paper argued the nature of recording combining of real estate, that is just indication of land or physical condition of building, not for changing rights on real estate. I examined the needs for amendment of these provisions on the combination of real estate in Korea.