不動産權原調査制度의 定着에 관한 硏究

부동산 거래 안전을 위한 권원조사제도의 정착 방안을 연구했다.

1. The Aim of the Study In Korea, Public confidence to publish a change of real right of real Estate is not admited on a register book. There are a lot of wrong incidents of dealcingin real Estate because of defective registration of real Estate defect of title. An mistaken dealing in real Estate is apt to bring about not only a penal offence but also a disorder of dealing in real Estate. Therefore a dealing in real Estate has been an important interest from Social and national view point.

For instance (1) When the proprietary right and the question of title have been recorded on the register book, there are cases to be cancelled the dealing itself by a fraud or a mistake (2) In the case of strengthening the restriction of public law for the purpose of increasing a social walfore, the title is liable to be defied. (3) If an appraised value of real property is neglected, an order of dealing in real property is apt to fall, break. (4) In spite of being defect of dealing in real Estate, sometimes there is no paying for damages.

Generally, before dealing in real Estate, if a person is able to investigate everything of registration of real Estate, he is able to deal in real estate itself. For example if a person knows about rightful person, the price, and the restriction of the real Estate, he is able to deal safely. Therefor, it is very important for a person to investigate the title of real Estate. But there is some-thing yet to learn itself. The aim of this study is to systematize and fix a theory of title investigation in Korea. 2. The Method and the Limit of Study In dealing of real property, when the acquisitor has a complete title, he can transfer his real property.

Therefore the defect arising from a title of real property has to be prevented before an affair takes place. And when a defect takes place after fact, the defect has to remove in order to make safe dealing in real property. When a damage conies from a defect of title of real estate, one has to be payed for damages but the responsibility for security of defect by a forged registration is not enough to a sufferer. The writer of this study is going to show the method to be received satisfactorily compensation for damages by a defect of dealing. The study to fix a system of title investigation is based on the point at issue from the institution, the subject and the working of investigation.

The writer of this study has analyized records and documents and has used the method of comparative study. 3. Conclusion (1) The "Title Analysis System" is necessary to establish the Real Estate business order in Korea. In the activity of analyzing the title, it is nothing but an actual act with taking charge, accordingly it has a lot of troubles, while the analyzer requires capability, experience and super knowledge. There are lots of specialized organizations for such analysis of title in the United States of America, For instance, there are Title Agency, Title Insurance Company, Abstract Company, Title Analyzing Agency, Title Examiner and Title Searcher etc.

The core in constitution of those specialized organizationsis Title Examiner which is one of licensers in America, and the Title Examince Association vest the authority in Title Examiner. After making thoroughgoing Title Examining, Title Insurance serve a guarantee paper. So it is the act to stabilize a series of activities on the real estate by prevention actual fabrication in registered paper and legal fraud in real estate. And so Title Analgiss System Which take analysing title with Exclusive responsibility from a land-housing policy, financial policy, registration administration and the other side point of view, must be legislated by political settlement.

(2) The "Title Insurance System" is necessary to establish the Real Estate business order in Korea. Title insurance is different from common insurance. It take an object only real estate business activity. So all the laws concerned to real estate activities must include an express provision. Moreover a foundation authority for title insurance business order must be legislated in commercial law. And it is essential part that each and every financial machinary which deal with accomodation of founds, taking realestate as security, must not accomodate to any person without annexing quarantee paper of title insurance and registration paper in paper.

So, the government authorities should recognize at first the inevitability of systemizing the analysis of the title. I also propose that a system of authorized Title Examiner be adopted and that title insurance company be set up soon. As a matter of course, there is much opposition from judical scriviners, land estimateer, certificated public judge, certificated public middle-man. So must be grope the joint plans for above real estate experts. And then, Carrying out problems of register book must besolved.

It matters required to be registered be install or using in title insurance company, it just mean opening to the public of private properity and possibility to using another aims beside title examining. And it must be required much money for management, for title insurance company should have many experts, to accomplish their duties and compile new real estate information. (3) Real estate administration and systematizing of concern regulations.

A look at our recent administration to real estate, the plan and enforcement of transfer income taxation system is under the Ministry of Finance, but the plan and enforcement of taxation system for acquisition and possession of territory is under the Ministry of Home Affairs. The other side, the main Department for territorial problems is the Ministry of Construction and for supply and demand plan about industrial site is the Ministry of Commerce and Industry, and for security and integrity is the Ministry of Agriculture and Fishery. Thus has brought about tremendous difficulty for real estate policy, because cross-regulation has not operated. And

目次 = 0 第 1 章 序論 = 4 第 1 節 硏究의 目的 = 4 第 2 節 硏究의 範圍 및 方法 = 5 第 2 章 權原調査의 原則과 主體 = 6 第 1 節 權原調査의 必要性 = 6 Ⅰ. 不動産登記의 公信力결여 = 6 Ⅱ. 國家 및 公共機關의 不動産活動 = 7 Ⅲ. 私有財産에 대한 公法上의 規則 = 7 第 2 節 權原調査의 原則 = 8 Ⅰ. 能率性의 原則 = 8 Ⅱ. 安全性의 原則 = 9 Ⅲ. 證據主義의 原則 = 11 第 3 節 權原調査의 主體 = 12 Ⅰ. 調査主體의 數 = 12 Ⅱ. 權原調査 機關 = 13 第 3 章 權原調査의 對象 = 15 第 1 節 登記에 관한 資料 = 15 Ⅰ. 登記簿 = 15 Ⅱ. 登記申請書類 = 18 Ⅲ. 印鑑證明書 = 20 第 2 節 地籍에 관한 資料 = 22 Ⅰ. 土地公簿 = 22 Ⅱ. 地籍圖 및 林野圖 = 23 Ⅲ. 기타 確認 資料 = 25 第 3 節 一般的 確認事項 = 26 Ⅰ. 所有權 = 26 Ⅱ. 他物權 = 31 Ⅲ. 公法的 規制 = 35 第 4 章 權原調査의 問題點과 改善方案 = 49 第 1 節 判讀上의 問題點과 改善方案 = 49 Ⅰ. 判讀의 重要性과 警戒要因 = 49 Ⅱ. 判讀에 의한 結論 提示 = 52 Ⅲ. 判讀上의 改善方案 = 54 第 2 節 登記上의 問題點과 改善方案 = 55 Ⅰ. 登記의 公信力 不在 = 55 Ⅱ. 補償制度의 不備 = 58 Ⅲ. 登記上의 改善方案 = 59 第 3 節 實務上의 問題點과 改善方案 = 59 Ⅰ. 瑕疵調査의 限界 = 59 Ⅱ. 抵當權證券대한 不備 = 62 Ⅲ. 實務上의 改善方案 = 67 第 5 章 結論 = 68 參考文獻 = 71 英文抄錄