不動産登記制度의 改善에 관한 硏究 : 信賴性提高方案을 中心으로 = (The) study on the improvement of real-estate registration system : laying stress on plans for reconsideration of reliance|RISS 상세보기

다국어 초록 (Multilingual Abstract)

The ideal of real-estate registration is for safety and rapidity of transactions by making public the real situation and right relation of real-estate by describing a certain matters on the register concerning real-estate by a registration public official representing a state organ. In order that registration can take this role sufficiently, first of all, a correct registration suitable to an authentic relation of right should be made. Unless the registration is correct, it may be harmful to the safety of a transaction. Next, the registration should be made rapidly. If a procedure for registration is delayed only for correctness, economy around real-estate may not be smooth. Therefore, the harmony between correctness and rapidity is the very ideal at which the registration system should aim.
In this thesis, in order to secure the authenticity of registration, I have examined the problems of notarization of the registration cause certificate, unification of register and ledger, joint application principle, a party concerned presence principle, letter of guarantee and confirmation in written which are one of documents attached to the application of registration, the right of investigation of a registration public official or the system to confirm an entrusted person in law affairs and objection application system for treatment of a registration public officials and then I have studied their improvement measures as follows:
First, concerning the system of notarization of registration cause certificate, I found out that there were many problems to introduce the system of notarization into our registration system because of problems of complexity of notarization into our registration system because of problems of complexity of notarization procedure, delay in registration procedure according to complexity, granting the actual right of investigation to a registration public official, range and object of notarization and insufficient number of notary publics.
Furthermore, I have examined how to supplement the present system in order to secure the authenticity of registration not executing the system of notarization of registration cause certificate.
Second, some people claim that register and ledger should be united. Their basis of claim is because of inconsistency between them, excessive management cost, inconvenience of use, etc. If these register and ledger are united, I regard it as appropriate in the aspect of convenience of user but the unification of them may occur a confusion under the circumstances that physical situation of real-estate can not be all registered at cadastre and ledger, places with unadequate land register reach to large amount, in order to arrange this, a business to establish the law of re-investigation of land register(provisional name) through public hearing in September 1996 has been proceeded, a register based on insufficient ledger may be a false register.
Before unification of these register and ledger, physical situation of real-estate should be correctly registered in the ledger.
Third, joint application principle and a party concerned presence principle are the system to prevent false registration by making registration obligator who may lose his/her right by registration be presented in a procedure of registration application. By the way, a false registration may be made because of pro forma investigation of a registration public official for identification of a person presented whether he is a party concerned. So I suggested a theory of legislation to grant a practical investigation right to a public official but limited to the identification of a person concerned and also suggested a theory of legislation to introduce a practical investigation right for identification of person concerned in identification of an entrusted person by a licensed person in law affairs.
Fourth, I have examined the effect of the present system which makes us submit identification in written instead of the system of guarantee by guarantor which has been filed in case of loss of registration certificate out of documents to be submitted when apply registration. Many problems has occurred due to the system of guarantee as a system for security of authenticity. And also, I have examined that the system of one's seal impression certification and the submission of a document proving address are required documents in order to secure the authenticity of registration.
Last, I have examined the problems of objection system for treatment of a registration public official, renewal and correctness system and their improvement measures.
Especially, some people who claim the introduction of the system of notarization claim that a registration public official with formal investigation right in case of application for registration according to false documents not by true intention of the holder of registration title deed under the current registration system. However, under the present system, though the documents required for application for registration were false, the registration by means of those false documents would not be easily made. Because parties concerned(registration obligee and obliger) should be presented together in the registration office and apply for registration in case of direct application of parties concerned or in case of application by a licensed person in law affairs, he/she should identify an entrusted person whether he is him(her)self in order to prevent false registration application not by real intention of the holder of registration title deed. So if someone may have necessary documents for application for registration, the application for registration would not be made as it is.
By the way, if someone applies for false registration by forging or altering required documents such as the certificate of one's seal impression since a registration public official or a licensed person in law affairs identify a party concerned formally, this can not be found out easily, which is the problem.
Therefore, in order to prevent the application for registration by false dcuments and secure the authenticity of registration, I suggested a theory of legislation that a registration public officer should have an actual investigation right so that they can identify the holder of registration title deed or a licensed person in law affairs can identify an entrusted person if the holder of registration title deed is identical to a person who applies for registration. Limited to the identification of a party concerned, granting an actual investigation right to a registration public offical within the range that a harm would not reach to the rapidity of registration in order to secure the authenticity of registration is a necessary measure and a false registration could not be made not by real intention of the holder of registration title deed through the improvement of the system like this.
And name trust registration which sometimes is imposed on duty of registration application by「Special settlement law of real-estate registration」and has been considered as legal by judical precedent, is prohibited because of the enforcement of the law of real rightful person of real estate's name registration. Due to enforcement of this law, false registration which does not coincide with registration at substantial relationship loses its ground.
Last, whether the public trust is admitted or not, the registration must be coincide with true right-relationship and this will become the basis to the approval of public trust. Maintenance of correct register is ideal state of registration system, but this thing may cause the delay of registration procedure and trade of real estate. In order to realize the ideal state of correct register, many of Koreans insist to induce certificate of reason for registration followed examples of German legislation. And regarding relationship between ledger and register, Japanese legislation becomes Korean model, so the unification of ledger and register is preferred. I already considered the problems caused by induction of these legislations in this thesis.
Public trust is ideal state of registration system. But public trust could not admitted if there's no relief steps for real rightful person who may loses his right because of public trust and no institutional settlement which can prevent unreliable registration. Therefore, only notarial act is not enough to admit the public trust. Correction systems for uncorrect registration-claim for corrected registration form Germany, rejection to registration system, real investigation right of registration public official and specialization and upgrading quality of registration public official- are also requested. These things means the total innovation that change the whole Korean registration system, so not only full studies and investigations for many problems, but also the matured circumstance to receive these systems. By the way, real-estate registration system is the creature of history, too. So I can not fully approve the people who like to induct the foreign systems to our registration system without any consideration about our receptive capacity for foreign systems and its cultural and traditional backgrounds.
The goal of this thesis lies in respect to our habitual practice of real-estate trade and making reform measure to ensure true registration-
conformity between registration and substantial relationship-without any big change at our registration system. To admit the public trust, arrangement of false registration on register is also needed. If there are plan for ensuring truth of the registration and are no possibility of false registration, approval of registration's public power could discussed and studied.
And scholars who are interested in field of registration law have to improve our real-estate registration system through continuous studies about the system which is best registration system for Korean situation.

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목차 (Table of Contents)

目次
第1章序論 = 1
第1節硏究目的 = 1
第2節硏究의 範圍와 方法 = 4
第2章各國의 登記制度 = 6

目次
第1章序論 = 1
第1節硏究目的 = 1
第2節硏究의 範圍와 方法 = 4
第2章各國의 登記制度 = 6
第1節外國의 制度 = 6
1. 獨逸 = 6
2. 스위스 = 14
3. 프랑스 = 17
4. 日本 = 21
5. 英美法 = 25
6. 各國의 登記制度의 比較 = 32
第2節 우리 나라의 制度 = 34
1. 登記制度의 沿革 = 34
(1) 槪說 = 35
(2) 第1期立案制度 = 36
(3) 第2期地契·家契制度 = 37
(4) 第3期證明制度 = 38
(5) 第4期日本制度依用 = 39
2. 不動産登記法의 制定 및 改正 = 41
(1) 制定의 經過 = 41
(2) 改正의 經過 = 42
(3) 法源 및 法令 = 48
3. 現行不動産登記制度의 基本原理 = 49
(1) 物椎變動의 形式主義 = 49
(2) 物的編成主義 = 49
(3) 共同申請主義· 當事者出度主義 = 50
(4) 形式的審査主義 = 51
(5) 登記의 公信力 = 52
(6) 登記의 推定力 = 53
(7) 國家賠償責任主義 = 53
第3章物權行爲와 登記와의 關係 = 55
第1節序說 = 55
第2節物權行爲 = 56
1. 物權行爲의 意義 = 56
2. 物權行爲의 種類 = 57
3. 物槪行爲의 方式과 內容 = 58
第3節物權變動에 관한 두 立法主義 = 58
1. 對抗要件主義(意思主義, 佛法主義) = 59
2. 成立要件主義(形式主義) = 61
3. 두 立法主義의 比較 = 61
第4節 우리 民法上物權行爲와 登記와의 關係 = 62
1. 學說 = 62
2. 學說의 檢討 = 65
第5節物權行爲의 獨自性과 有因性·無因性 = 66
1. 物權行爲의 獨自性 = 66
2. 物權行爲의 無因性 = 67
第6節檢印契約書使用과 物權行爲의 獨自情·無因性 = 67
1. 檢印契約書와 物權行爲의 獨自性 = 68
2. 物權行爲의 無因惰·有因倂 = 70
3. 學說의 檢討 = 70
第4章不動産登記의 有效要件 = 73
第1節序說 = 73
第2節登記의 形式的有效要件 = 75
1. 登記의 存在 = 75
2. 形式的瑕疵의 不存在 = 78
第3節登記의 實體的有效要件 = 81
1. 有效한 物權的合意의 存在 = 82
2. 物權約合意와 登記의 合致 = 86
第5章現行不動産登記制度의 問題點과 登記의 信賴性提高方案 = 92
第1節序說 = 92
第2節登記原因證書의 公證問題 = 96
1. 登記原因과 登記原因證書 = 96
(1) 登記原因에 대한 立法例 = 97
(2) 우리 나라의 登記原因에 관한 學說 = 100
2. 登記原因證書의 公證 = 102
(1) 獨逸의 公證制度 = 103
(2) 우리 나라의 公證制度 = 104
3. 우리 나라에 있어서 登記原因의 公證制導入論 = 106
4. 登記原因證書의 公證制의 內容 = 108
(1) 公證의 對象 = 108
(2) 公證의 範圍 = 109
(3) 公證의 方式 및 效力 = 109
(4) 公證의 管轄 = 110
5. 公證制導入論에 대한 問題點 = 110
(1) 公證節次의 複雜化와 登記節次의 지연 = 110
(2) 公證囑託人 및 代理囑託人確認問題 = 112
(3) 不動産去來內容의 眞正性保障問題 = 114
(4) 登記公務員의 形式的審査權과 登記原因證書의 公證 = 116
(5) 公證人分布 및 費用問題 = 116
(6) 不實登記의 방지를 위한 改善方案 = 118
(7) 檢印契約書制度의 폐지 = 118
6. 登記原因證書의 公證과 登記의 公信力 = 119
第3節登記簿와 臺帳의 一元化問題 - 一元化論의 批判的 입장에서 - = 124
1. 立法例 = 126
(1) 獨逸 = 126
(2) 日本 = 128
2. 登記簿와 臺帳과의 關係 = 130
(1) 現行不動産登記法上의 規定 = 131
(2) 地籍法上의 規定 = 132
(3) 를帳의 未添附와 不實登記 = 132
3. 登記簿와 臺帳의 一元化論 = 134
(1) 一元化論의 根據 및 妥當性 = 134
(2) 一元化論의 問題點 - 一元化制度批判- = 134
(3) 土地臺帳 및 家屋臺帳制度 = 135
(4) 一元化論의 妥當性 검토 = 141
(5) 立體約空間利用 과 地籍制度 = 145
4. 登記簿와 實體關係를 一致시키기 위한 制度 = 149
(1) 建物의 滅失·不存在 = 149
(2) 滅失建物登記用紙 등의 職權整理 = 149
(3) 長期間放置된 抵當權등의 職權整理 = 149
5. 登記簿의 改善方案 = 150
(1) 建物의 固有番號附與 = 150
(2) 登記簿編制方法의 改善 = 151
第4節登記申請節次와 登記申請書添附書面에 관한 問題 = 152
1. 共同申請主義·當事者出席主義 = 152
(1) 立法例 = 154
(2) 單獨申請主義에로의 轉換 = 155
(3) 私見 = 156
2. 登記畢證確認書面(舊保證書)에 관한 問題 = 159
(1) 保證書制度에 관한 立法의 經過 = 160
(2) 保證書制度의 問題點과 確認調書 등의 機能强化 = 162
(3) 私見 = 163
3. 住所를 證明하는 書面 및 住民登錄番號 등 記載 = 164
4. 印鑑證明制度 = 165
(1) 印鑑證明制度의 問題點 = 167
(2) 私見 = 167
第5節登記事務從事者에 대한 問題 = 169
1, 登記公務員 = 169
(1) 登記公務員의 地位 = 169
(2) 登記의 信賴性提高를 위한 登記公務員의 審査權과 權限擴大 = 175
(3) 登記公務員의 資質向上과 專門職化 = 181
(4) 更正登記制度의 問題點과 改善方案 = 183
2. 法務士의 委囑人確認義務 = 192
(1) 委囑人確認義務 = 192
(2) 判例의 態度 = 193
(3) 私見 = 196
(4) 法務士의 資質向上 = 197
3. 立法論 = 199
第6節登記公務員의 處分에 대한 異議制度의 問題點과 그 改善方案 = 200
1, 異義制度의 槪觀 = 200
2. 異義申請制度에 관한 問題點 = 202
3. 改善方案 = 207
第7節不動産登記의 電算化 = 207
1. 槪說 = 207
2. 日本의 登記業務電算化 = 208
3. 우리 나라 登記業務電算化의 推進現況 = 209
4. 登記業務電算化의 效果 = 210
第6章結論 = 211
參考文獻 = 215
ABSTRACT = 235

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