Republic of Korea has implemented a real estate registration system for safety of real estate transactions. The purpose and function of the real estate registration system is to protect true rights holders and prevent third-party well-intentioned vict...
Republic of Korea has implemented a real estate registration system for safety of real estate transactions. The purpose and function of the real estate registration system is to protect true rights holders and prevent third-party well-intentioned victims by disclosing relations in chages in real rights accurately and quickly. Since public confidence in real estate registration is not recognized under the current law, the one who trades with trust in registration of real estate is not protected when a true right holder exists. In other words, according to the current law, static safety the one of the regesterd name is considered more importantly than dynamic safety the true right holder. This is because insufficient registration of real estate occurred due to insufficient systems and registration procedures during the implementation and transition of the real estate registration system, and protecting the registered name causes infringe on the true right holders’ right. The fundamental reason why the public confidence in registration of real estate is not accepted in our legal system is the insufficient registration. Insufficient registration refers to not only false registration by forged documents, but also all registration that does not match the actual rights relationship regardless of forgery, intention, malice, or good faith. Insufficient registration occurs since the current registration agency takes formal examination. Real estate registration must be made in accordance with the actual rights relationship through substantial examination by the registration agency. However, since the current registration examination is based on a formal examination, there is a limit to ensuring that the registration and the actual rights relationship match. However, if the registration agency is given the right to examine the registration for the purpose of ensuring the reliability of registration, it will delay the process of registration and increase the volume of work, These will slow down the work of registration, After all, it will diverge from the original ideas in the real estate registration system.
Therefore, the prevention of insufficient registration should be preceded for the public confidence of registration, the safety of transactions, and the protection of a third party in good faith. Currently, Korea's real estate registration system and the procedure of registration have been transferred from handwritten register to computerized register to adapt to the changing of the times, and with the development of the ICT industry, Korea's real estate registration system has been developed day by day through electronicization.
In this paper, unless the public confidence of registration is accepted in the Korean registration system and current law, insufficient registration cannot be completely prevented, and insufficient registration should not infringe on the safety of real estate transactions and cause unforeseen damage to a third party in good faith. After reviewing the current law regulations and theory construction to protect the trustees of registration under the current law, which does not recognize the public confidence of registration, we have considered ways to improve the safety of registration system for real estate transaction and effective improvement measures.
This paper summarizes the improvement measures and practical registration procedures proposed as measures to improve the trust of registration for the safety of real estate transaction and prevent insufficient registration.
First, in relation to the improvement of the registration agency, there is an opinion that the occurrence of insufficient registration is due to the formal examination right of the registration authority, so the insufficient registration should be blocked by the actual examination right of the registration authority. If the registration agency is given the right to examine, it is highly likely that the registration will match the entity relationship. However, even if we recognize the right to examine, it does not always mean that the registration corresponds to the entity relationship. This is because even if the registration agency has the actual right to examine, it is difficult to say that the right to examine will be comparable to the right to investigate. In other words, there is a limit to ensuring the authenticity of registration even if the registration agency’s actual examination right is implemented. In addition, if the registration agency conducts a substantial examination, the speed of registration becomes slows, and the uncertainty of the registration agency may reduce the real estate transactions and give a bad effect on the national economy. In my opinion, simply verifying the identity of the registration application based on the formal examination of the current registration agency, confirming the authenticity of the documents provided as attached information, and confirming the authenticity of the registration step-by-step procedure can be expected to have as much effect as the actual examination right of the registration agency.
Second, the majority view is that the actual examination must be satisfied in order to recognize the public confidence of registration, through the actual examination of the registration agency or notarization of the certificate of cause of registration. The purpose of the notarization system for certificates of cause of registration is to secure the authenticity of the cause of registration so that registration consistent with the actual rights relationship is performed. However, if the parties to the transaction conspire to notarize the certificate of cause of registration, insufficient registration may occur for notarization that fails to fulfill a strong level of examination. This is because notaries rely solely on the confirmation of the parties' intentions. If so, the notarization system of the certificate of cause of registration results in a notary public confirmation of the registered name only, which undermines its purpose. Another problem with the introduction of the notarization system is that additional time and cost of real estate transaction procedures are needed. In other words, there remains the demanding problem of which parties will tolerate the time and cost of the notarization process of real estate transactions. Therefore, Without a fundamental supplement to the problem of notarization of certificates of cause of registration. The logic that the introduction of the notarization system for certificates of cause of registration is the recognition of public confidence and the guarantee of the authenticity of registration isn’t the right direction.
Third, looking at the real estate electronic transaction contract system, the transaction party makes the contract by Authorized certification and electronic signature without certification of seal in the process of signing the registration cause contract by the electronic transaction contract system, And it ensures the sincerity of the parties's identification process, The contract is presumed to be a sincere document under the Framework Act on Electronic Documents and Electronic Transactions. And it reduces insufficient registration with storage effect and prevention of brokerage accidents. Therefore, it can be expected to have the same effect as the notarization system of the certificate of cause of registration. Moreover, such contracts can be expected to enhance tax transparency, enhance the benefits and costs of trading parties, strengthen the clarity and soundness of real estate transaction market information, and develop the real estate industry by utilizing transaction information secured through real estate electronic contracts. However, the current electronic contract system for real estate transactions is limited to the sale and lease by licensed real estate agents, In the future, it is thought that it is necessary to expand the application to direct transaction contracts between individuals, sales, and other causes other than leases (exchange, etc.) In addition, if the electronic contract system is used as a means of securing the authenticity of the cause of registration in real estate transactions, it will contribute to the prevention of insufficient registration. This is because the contract can be expected to be a true registration due to the effects of identification of the parties to the transaction, authenticity of the contract, prevention of counterfeiting or falsification of the contract, and storage of the contract.
The fourth thing to say is to improve the system at the registration stage.
The attached documents of the registration application indicate the intention to apply for registration in the real estate registration procedure.
Among them, if the current seal certification system and the self-signing fact verification system are improved and the purpose and contents of each certificate are detailed, the notarization power of each certificate will be improved.
As a result, the registration intention and purpose of using the certificate of the registration application party can be sufficiently estimated. In addition, the agency in charge of the inspection and actual transaction reporting can expect an additional effect of securing the authenticity of registration by strengthening the identification of the parties to the transaction and confirmation of the transaction details. Moreover, registration agencies and qualified agents have the effect of preventing insufficient registration simply by strengthening the verification of the authenticity and qualification of the attached documents submitted at the time of registration application. The provisions of Article 46 (1) 8 of the Real Estate Registration Regulations were newly established. This regulation requires qualified agents to check their identity when applying for registration and submit the self-signed information to the registry office in an individual registration application case. Through this, it will be helpful for practical examination of the registration agency in charge of registration. The cause of registration is a claim act, so if there is no defect in invalidation or cancellation of the cause of registration, it is a complete real right act, and real estate rights are changed. Disputes between the parties can be prevented in advance by introducing a system to confirm whether such claim acts are implemented. Since the actual relationship of rights of the cause of registration can be easily confirmed by the parties, it can have a positive effect on the verification procedure of the registration agency. Therefore, it is effective in preventing insufficient registration.
Fifth, the notification of the completion of registration and the notification procedure of ownership change are systems prescribed by the Korean Real Estate Registration Act, It is being implemented with limited contents such as providing tax data. Since there is a risk of insufficient registration due to crimes such as forgery or tampering in the registration process, efforts to protect true rights holders in the registration system will be needed.
Therefore, even at the completion of registration, the registered name should be informed of the change of ownership, and in the case of registration against the true intention, an opportunity to restore one's rights should be provided. And for damage caused by insufficient registration, an appropriate compensation system will protect real rights holders by allowing proper compensation to be made for victims of insufficient registration, thereby increasing citizens' trust in the registration system.
Finally, in real estate transactions, the real purpose of real estate transactions is to ensure that real estate rights are attributed to real rights holders. However, there is a concern that victims may occur because Korea does not have an appropriate compensation system for dynamic safety. However, the introduction of public confidence and damage compensation systems into our registration system is not scheduled yet.
Therefore, institutional and administrative improvements are needed at the registration stage so that real rights holders can acquire real estate, which is relatively easier than the revision of the law. In other words, in order to prevent victims, the procedure in the registration stage must be improved to ensure authenticity and to minimize the occurrence of insufficient registration by confirming the contract intentions of the parties. That is the task that we must solve first.