不動産 所有權 侵害의 救濟方案에 관한 硏究 : 權原保險을 中心으로 = (A) study on a remedy for the infringement to real property

다국어 초록 (Multilingual Abstract)

Modern civil law, based on the liberalism and individualism, has three major principles which are the absolutism of property, the private autonomy and the liability with fault. But the serious disparity between the rich and the poor, caused by the modern capitalism, has brought the strong demands for real equality and distributive justice. Therefore, new practical principles, which are the faithfulness, the transaction security and the public policy, come out with the highest principle of public welfare and old principles described above are modified. In dealing with the problems which belongs to the part of real right in civil law, it becomes influential to harmonize the security stitique based on the principle of announcement with the security dynamics, based on that of public faithfulness.
Korean current civil law makes it a rule to adopt the immovables registration as the policy of public announcement, but ignores the significance of public confidence. As a result, the transacting accidents are caused by the imperfectness of registration system and malinformation among transferees and not a few Transferees in good faith has been exploited. This treatise has focused on six causes of it.
First it is the transacting accidents caused by false recording. The problems of false recording can be divided as those of registration and system. The symposium, held by the Korea Society of Civil law on 31st August 1981, discussed a remedy notarizing the certificate of title when the registration of immovables property is applied. It is not proper in practice, as many prerequisites are required to realize this policy. On the other hand, the opposite opinion has its own merit in some ways, but it is too conservative to regulate the troubles. Therefore a new remedy coincided with the reality should be created.
Second, the dualism of public announcement system of real estate can be one of the reasons. The change of immovables real rights is announced publicly by the registration of real estate and the record of land registration. The practicing authority is also divided into two. The best priority for register book has caused false recording and one of the reasons for transactin accidents. To get rid of the inconsistency of dual system and the false recording, it is said that one unified system is necessary and registration officers should be given the actual right of examination. The main function of registration shows the loss-gain and change of title, and that of the record of land registration indicates the main idea on the efficient use and management of land and the public welfare rather than the scope of property. Obviously, it is more desirable to scientificate and computerize the administration than to unify the system. Mutual check system is more efficient and reasonable to realize the purpose of public announcement.
Third, the legal complement of division ownership can be one of the problems. It was recently complemented by the special law(10th April 1984, law #3725). But in the case of the registration of common use area which is found in the large scale apartment complex, the institutional inertia on the registration can be still found. Therefore I explain legislated background of this special law and study substance of it, also I study and pointout on problems which should be occured by this special law in future.
Forth, the hidden government property has caused the transacting accidents and has destroyed the transacting order. The agricultural land, which has been registered on a register or other official book by other one than the nation and has been transacted as a perfect real right apparently, has been got back by the government treating as a hidden government property because it has not been properly distributed during the dispcsal process of it after 1945. It has caused damage to the security of real estate transaction and the transferees in good faith. The lawfulness of this treatment should be reexamined. A new countermeasure which protect the transferees in good faith consistently should be nationally considered.
Fifth, lands in a reclaimed area of which the ownerships are not restored has brought a problem. After Korean War, due to the missed official documents and owners, the special law was issued to restore the disorder. But that kind of policy made the situation more serious. Recently the government has issued the special law about the registration of restoration and preservation of those land. (operation from 1st July 1983). But as I descirbed at Secition 5-4, Chapter 4, many problems in it can be found and the prompt countermeasure for it is needed.
sixth, the last one is the problem about the right of sunlight. The concern about sunlight is liable to be infringed due to the high degree of land use correspending to the public law such as the city planning law. It is important for the pleasant environment and the healthy life. Also this is a kind of conflict between the public law and the private law. It is generally natural to approve the right of sunlight. The latter should be approved as its public announcement. The former can cause trobles and occurrences of victims in good faith being difficult to recognize externally. The countermeasure about it is needed.
Various problems mentioned above will become more complex and serious with development of society. Therefore in this treatise I assert that the introduction of the Title Examination System and the Title Insurance System as a countermeasure for them.
Both of the systems are efficient on the English and American law. The former is a precautionary measure, and the latter is an ex-post loss transfer measure. I think the introduction of these systems is the best in our circumstances. In addition to the introduction of these systems, it is more useful, I think, to adopt the Title Examiner System. I also suggest that the withdrawal of government property in progress currently would be revised and completed.

목차 (Table of Contents)

• 목차
• 第一章 序論 = 1
• 第1節 硏究目的 = 1
• 第2節 硏究의 範圍 및 方法 = 4
• 第二章 不動産 所有權의 比較法的 變型 = 8
• 第1節 權原의 槪念 = 8
• 第2節 土地所有權의 時代的 變遷 = 9
• 1. 原始社會의 土地所有權 = 9
• 2. 로마社會의 土地所有權 = 10
• 3. 中世封建社會의 土地所有權 = 11
• 4. 近代社會의 土地所有權 = 13
• 5. 現代社會의 土地所有權 = 15
• 第3節 英國의 所有權制度와 公有化의 過程 = 17
• 1. 英國의 土地所有權의 槪念 = 17
• 2. 所有權의 公有化의 實態 = 18
• 第4節 日本의 近代的 土地制度 및 所有權 變遷過程 = 33
• 1. 戰前日本의 所有權 = 33
• 2. 戰時體制와 所有權 = 38
• 3. 戰後의 土地所有權 = 40
• 第5節 우리나라 土地所有權의 時代的 變遷 = 48
• 1. 三國 統一新羅時代 = 48
• 2. 高麗時代 = 49
• 3. 朝鮮時代 = 51
• 4. 日帝의 植民地 時代(土地調査事業) = 52
• 5. 大韓民國 樹立 以後 = 54
• 第三章 不動産 去來行爲의 瑕疵의 態樣 = 57
• 第1節 不動産 去來事故의 槪念 = 57
• 1. 不動産의 法律的 意義와 特性 = 58
• 第2節 法律行爲에 의한 不動産 物權變動의 瑕疵 = 66
• 1. 法律的 去來事故 = 66
• 2. 經濟的 去來事故 = 68
• 3. 技術的 去來事故와 流通的 去來事故 = 68
• 第3節 去來事故의 所有權 侵害形態와 事例 = 70
• 1. 所有權의 侵害形態 = 70
• 2. 不動産 去來事故의 事例 = 72
• 第四章 不動産所有權 侵害에 대한 法律的인 救濟方案 = 81
• 第1節 不實登記에 의한 所有權 侵害의 救濟方案 = 81
• 1. 意義 = 81
• 2. 不實登記의 原因 = 81
• 3. 不實登記의 制度上의 原因 = 85
• 4. 公證制度案에 대한 分析·批判 = 91
• 5. 不實登記에 의한 所有權侵奪의 救濟方案 = 97
• 第2節 不動産 公示制度 不一致로 인한 所有權의 侵害 = 99
• 1. 不動産에 대한 二元的 公示提度 = 99
• 2. 地籍과 登記와의 關係 = 103
• 3. 公示制度의 安全性 缺如 原因의 檢討 = 106
• 4. 改善方案과 結語 = 111
• 第3節 新 制定·公布된 區分所有權의 檢討 = 114
• 1. 集合建物法의 立法的 背景 = 114
• 2. 集合建物法의 規定內容 = 115
• 3. 區分所有權 對策方案 檢討 = 123
• 第4節 隱匿(亡失) 國有財産現況에 대한 問題點 = 125
• 1. 意義 = 125
• 2. 隱匿國有財産의 實態 = 127
• 3. 對策方案 = 137
• 第5節 收復地域의 潛在的인 法律的 瑕疵의 檢討 = 138
• 1. 收復地域內의 所有自未復舊土地의 發生背景과 現況 = 138
• 2. 所有權 未復舊土地의 復舊登錄과 保存登記에 관한 主要節次 = 141
• 3. 所有自未復舊土地의 復舊登錄과 保存登記 등에 관한 問題點 및 그 對策方案 = 141
• 第6節 日照權의 侵害와 私的保護 = 145
• 1. 日照權의 保護理由 및 救濟根據 = 147
• 2. 日照權 侵害의 判定基準 = 150
• 3. 高度利用에 의한 土地의 日照權 侵害의 救濟方案 = 152
• 4. 結言 = 156
• 第5章 權原調査制度 = 158
• 第1節 不動産 權原調査의 槪念 = 158
• 1. 不動産 權原調査의 意義 = 158
• 2. 不動産 權原調査의 定義 = 159
• 第2節 權原調査의 分類 및 性格 = 163
• 1. 分類 = 163
• 2. 性格 = 166
• 第3節 權原調査의 主體 = 168
• 1. 權原調査機關 = 168
• 2. 權原調査施設과 資料 = 170
• 第4節 不動産 權原調査의 活動方向에 대한 接近方法 = 172
• 1. 權原調査의 眞正性에 대한 作業方向 = 172
• 2. 權利關係의 內容(法律的 價値)의 槪念 = 174
• 3. 實質的 調査·確認·判斷의 槪念 = 178
• 4. 權原調査의 三大 特別原則 = 180
• 第5節 權原調査의 活動方法 = 186
• 1. 判讀 = 186
• 2. 調査活動 = 187
• 3. 調査表의 作成 = 190
• 4. 報告書 作成 및 責任 = 190
• 第6節 結言
• 第6章 權原保險制度 = 193
• 第1節 權原保險의 槪念 및 性格 = 195
• 1. 槪念 = 195
• 2. 性格 = 195
• 第2節 權原保險의 特徵과 必要性 = 198
• 1. 權原保險의 特徵과 必要性 = 198
• 2. 權原保險에 의해 除去되는 危險 = 199
• 第3節 權原保險의 利益 = 201
• 1. 賣渡人이 받는 利益 = 201
• 2. 不動産 買受人이 받는 利益 = 202
• 3. 金錢貸出人이 받는 利益 = 203
• 4. 不動産 辯護士가 받는 利益 = 204
• 5. 不動産 仲介業者가 받는 利益 = 204
• 6. 家屋·建築業者가 받는 利益 = 205
• 7. 一般生活共同體가 받는 利益 = 205
• 第4節 保險契約의 當事者 = 206
• 1. 保險者 = 206
• 2. 保險契約者 = 210
• 第5節 權原保險의 內容 = 211
• 1. 保險의 目的物 = 211
• 2. 保險證書 = 211
• 3. 保險事故 = 215
• 4. 保險金額 및 保險期間 = 220
• 5. 保險料 및 保險料期間 = 223
• 6. 其他 會社의 責任 = 223
• 7. 具體的인 事例 = 231
• 第七章 結論 = 247
• 參考文獻 = 256
• Abstract = 271