登記請求權에 關한 硏究 = A Study on the Right to Claim the Registration in the Real Estate Register

부동산 등기청구권의 실체법적·절차법적 쟁점을 검토했다.

The right to claim the registration in the real estate register(hereinafter referred to as "the Right") acts as an intermediary which connects substantive law and procedural law. However, so far discussions have been focused on the issues related to the substantive law. Little researches have been done on the issues concerning the procedural aspects. So I hereby tried to review the Right, mainly focusing on the procedural aspects of the Right.

The conclusions are as follows: Firstly, it is commonly explained that the ground for the right is the principle of joint application which means application for real estate registration should be made by both the party who will benefit from the registration and the party who will suffer loss from the registration. However, the Right does not necessarily come from the principle. In some cases, the person who is not the party of joint application has the Right and the person who is party of joint application does not have the Right. Furthermore, in the registration process which may be applied by a single party, the Right can also be acknowledged against that party.

So I think that it is not appropriate to explain the ground for the Right with the principle of joint application of both parties. Then, what should the ground for the Right be? The application process should be complied with the Real Estate Registration Act which provides real estate registration process, and according to the Act when it is required to get another person's cooperation in the application process, then the applicant who wants to apply for the registration can ask another person to cooperate for that application.

Therefore, it is more adequate to find the ground for the Right in the basic principles of the Real Estate Registration Act rather than in the principle of joint application only. Secondly, according to the Act in some cases the consent of a third party is needed to the application. I think the right to claim the consent against the third party can be considered as one kind of the Right. Thirdly, the Right is commonly defined as "right of the party who will benefit from the registration against the party who will suffer loss from the registration to claim the cooperation in the application for the registration." This definition is based on the principle of joint application.

But as I have reviewed, the principle is not the only ground. So I suggest to define the concept of the Right as "the substantive right of a person who wants to have his/her right registered in the real estate register against another person to claim for cooperation when the other person's cooperation is needed." Fourthly, in most cases the parties of the Right are the same as those of the joint application. However, let's suppose the following case: Ownership of a real estate is transferred and registered from A to B, then from B to C, but the transfers and registrations are null and void.

When it comes to the cancellation of the registration of C, the parties of joint application are B and C, but B who is the party of joint application does not have the Right, and A who is not the party of the joint application has the Right. So in that case we can see that the parties of the Right are not the same as those of the joint application. Fifthly, I have reviewed several other issues regarding the Right from the procedural aspect. One of those is this: When a real estate is sold from A to B, then from B to C, most agrees that the registration could be made from A to C if the three parties agree on it, and that C is able to claim cooperation for that registration.

However, A does not sell the real estate to C, so there are not any direct relations between A and C. And in an application form for registration "cause of registration" shall be stated. With regard to this matter, I have reviewed what the cause of registration should be.

第1章 序 論 = 1 第1節 硏究의 目的 = 1 第2節 硏究의 範圍 및 構成 = 4 第2章 登記請求權의 理論的 基礎 = 7 第1節 序說 = 7 第2節 登記請求權의 意義 = 7 Ⅰ. 槪念 = 7 Ⅱ. 登記受取請求權의 問題 = 10 Ⅲ. 登記申請權과의 區別 = 14 Ⅳ. 沿革 및 比較法的 考察 = 15 第3節 登記請求權과 共同申請主義 = 17 Ⅰ. 序說 = 17 Ⅱ. 共同申請과 무관한 경우와 登記請求權 = 19 Ⅲ. 單獨申請主義를 취하는 獨逸法上의 登記請求權 = 21 Ⅳ. 小結 = 22 第4節 登記請求權의 當事者와 登記權利者·登記義務者 = 26 第5節 登記請求權의 發生原因 및 性質 = 30 Ⅰ. 序說 = 30 Ⅱ. 法律行爲에 의한 物權變動의 경우 = 31 Ⅲ. 實體關係와 登記가 一致하지 않는 경우 = 31 Ⅳ. 占有取得時效의 경우 = 32 Ⅴ. 기타의 경우 = 33 第6節 登記請求權의 行使 및 消滅時效 = 34 Ⅰ. 登記請求權의 行使 = 34 Ⅱ. 登記請求權의 消滅時效 = 35 第3章 共同申請하는 境遇에 있어서의 登記請求權 = 38 第1節 序說 = 38 第2節 法律行爲 또는 登記가 連續된 경우의 登記請求權 = 39 Ⅰ. 數個의 法律行爲가 連續된 경우에 발생하는 登記請求權 = 39 Ⅱ. 無效登記가 連續된 경우에 발생하는 登記請求權 = 62 第3節 假登記 또는 制限物權登記와 登記請求權 = 69 Ⅰ. 序說 = 69 Ⅱ. 所有者側의 假登記權者 또는 制限物權者에 대한 登記請求權 = 70 Ⅲ. 假登記權利者 또는 制限物權者側의 所有者에 대한 登記請求權 = 81 第4章 單獨申請하는 境遇에 있어서의 登記請求權 = 89 第1節 所