中間省略登記에 관한 硏究 = (A) Study on the Intermediate Omission Registration

다국어 초록 (Multilingual Abstract)

Intermediate omission registration means to omit the registration of intermediate acquisitor and transfer it to the final grantee directly from the first grantor in case real right of real estate should be transferred from the initial grantor to the last grantee.
This intermediate omission registration has long been carried out because it can be exempted from taxations, make the complicated process of registration simple and save the registration fee.
However, rather than positive aspects that this intermediate omission registration can make the complex procedure easy and cut down registration time and its price, it has been used in terms of negative aspects such as evasion of tax to maximize not profit of using but the transfer difference by abusing the institutional defects. The main contents of the intermediate omission registration are about the problem of effectiveness of expired intermediate omission registration and the problem of registration claim.
Under the current Private Law which assumes formalism, the effect of the change of real right comes into effect when it takes registration beyond the agreement of real right; transfer registration should be successively performed from the first grantor to intermediate grantee, and from the intermediate grantee to the final grantee. Therefore the effect of intermediate omission registration transferred unsuccessively cannot be acceptable, and the registration claim which demands the first grantee to omit the registration of the intermediate grantee and transfer it to the party concerned, cannot be basically admittable.
Nevertheless, the intermediate omission registration has been practically performed since the era of the old Private Law and is still being performed in dealings of real estates for the purpose of saving the taxes like registration tax/transfer income tax and registration fee, and simplifying the registration process. Regarding those, practice and majority opinions recognize the effectiveness of the intermediate omission registration. The authority of the recognization consists in the notice of the real relation of right and transaction security.
This intermediate omission registration that is frequently used in speculation of real estates based upon the traditional effectiveness, should be eradicated as the anti-social legal act against the justice concept of good citizens. Thus, in this measure were enacted Special Measures Law of Real Estate in 1990 and Law of Name Registration of Rightful Person of Real Estates in 1995 : by enforcing the registration of real name correspond to the rightful relation in the dealings of real estates, the laws prohibit non-registration resale, intermediate omission registration and title trust, and even punish the offender by penal punishment.
In the present thesis will be reviewed the existing practices of the intermediate omission registration and the problem of recognizing its effectiveness and the registration claim since the enactment of regulation law, and will be also reviewed proposals from both interpretative and legislative standpoints.
For the present purpose, the thesis is categorized into six chapters about legal principle of intermediate omission registration. Chapter 1 describes the purpose of the present study, its field and method as an introduction. Chapter 2, as the essence of the intermediate omission registration, summarizes the meaning and pattern of the intermediate omission registration, and classifies and reviews its origins from the perspective of contents. As the chapter of recognizing the intermediate omission registration, chapter 3 reviews the basic theory of change of real right in Japan and Germany, and practices and theories of the effectiveness of the intermediate omission registration, and summarizes practices and theories in Korea.
Chapter 4 reviews the general character of the intermediate omission registration and theories and practices of the claim right of the intermediate omission registration in Japan and Korea, and presents my individual opinion about its claim right. Chapter 5 investigates the reason of crippling operation of registration principle under the current law as the regulating law of the intermediate omission registration, and reviews Special Measures Law of Registration of Real Estate, the special law of regulating the intermediate omission registration, and legislative background, contents, and problems of Law of Name Registration of Rightful Person of Real Estates.
In conclusion, the intermediate omission registration should be recognized for the legal security, transaction security, and reasons of registration and lawsuit, but the claim right of intermediate omission registration should not be permitted. Not permitting the claim right of intermediate omission is reasonable for legal security, because it can decrease the economic registration waste of repeating the same registration process and does not impair the third party who transacted in trust. Also due to the Public Law which prohibits the intermediate omission registration and has punishment regulations, it will be to help illegal action if the claim right of intermediate omission registration were recognized. Therefore, the court's practice, as a wrong practice, should be remedied that recognizes the claim right of intermediate omission registration on the condition of the third party's compromise.

목차 (Table of Contents)

• 第 1 章 序論 = 1
• 第 1 節 硏究目的 = 1
• 第 2 節 硏究範圍 및 方法 = 2
• 第 2 章 中間省略登記의 本質 = 4
• 第 1 節 意義 및 類型 = 4
• Ⅰ. 意義 = 4
• Ⅱ. 類型 = 5
• 第 2 節 發生原因 = 12
• Ⅰ. 槪說 = 12
• Ⅱ. 民法解釋論에 의한 發生原因 = 13
• 第 3 章 中間省略登記의 認否 = 21
• 第 1 節 外國의 解釋論 = 21
• Ⅰ. 日本 = 21
• Ⅱ. 獨逸 = 27
• 第 2 節 우리나라의 解釋論 = 30
• Ⅰ. 形式主義 採擇 = 30
• Ⅱ. 判例 = 31
• Ⅲ. 學說 = 36
• 第 4 章 中間省略登記請求權의 認否 = 46
• 第 1 節 性質 = 46
• 第 2 節 學說·判例 = 47
• Ⅰ. 日本 = 47
• Ⅱ. 우리나라 = 49
• 第 5 章 中間省略登記의 規制法理 = 55
• 第 1 節 登記義務主義의 必要性 = 55
• Ⅰ. 序說 = 55
• Ⅱ. 現行法上 登記主義의 跛行原因 = 56
• 第 2 節 不動産登記特別措置法 = 59
• Ⅰ. 立法 背景 = 59
• Ⅱ. 制度의 內容 = 60
• Ⅲ. 同法 規定의 效力에 관한 學說의 對立 = 61
• Ⅳ. 同法의 問題點 = 62
• Ⅴ. 同法 施行後의 學說·判例 = 69
• 第 3 節 不動産實權利者名義登記에 관한 法律 = 72
• Ⅰ. 立法 背景 = 72
• Ⅱ. 內容 = 75
• Ⅲ. 問題點 = 76
• 第 6 章 結論 = 84
• ABSTRACT = 87
• 參考文獻 = 91