登記의 推定力과 公信力

다국어 초록 (Multilingual Abstract)

In recent years, the respect relating to the exchanging value of real estates has been gradually considered as an important factor, while there have been the buying quantities of these real estates more than 6 million cases for each year. Also, because their buying case continues to be increased, it's required to carefully consider the public confidence, and to sufficiently improve the regulation necessary to prevent both damages of the person with true right and delay of registration procedure which are the problem of the public reliability.
Meanwhile, there is no expressed regulation about public reliability on real estate registration In Korea. But generally agreed theory and judicial practices say that public reliability is not recognized. However if the public reliability of registration is not recognized, it would be prohibited the credibility of the public reliability of registration in the process of the rapid real estate transactions which are the general tendency of modern society.
Therefore, In this thesis I tried to point out the reasons why the public reliability should be recognized through the study of real estate registration, a legal treatment of it, the example of a foreign legislation and a system to protect people who trust it.
Through a comment on insistence that recognition on public reliability is too early at the moment, I insisted that there should be public reliability, and showed some contents of it and rearrangement of legal procedures required for it in case that public reliability were recognized.
So The first, it is advisable to give the verification right to the registration public officials in a sense that they are responsible to keep recording the credible registry. The second, since the preventive measures and the compensation system for the real estate transaction accident are appropriate, it is advisable, as an intermediate steps, to introduce title insurance system which must be modified to take effect in the korean real estate environment. It is noticeable for the First America Title Insurance company(FATIC) to introduce the title insurance in korea real estate market in February 2001 successfully.
The third, the register compulsion is necessary in meaning that national all real estates should be up-to-date to the register. Re-survey of all parcel in the nation and the construction of land information system are also required to improve the credibility of the registration. In the process of building the land information system, it is necessary to provide the verification right to the registration public officials.
The fourth, the register book, the land register and other public document related to land should be integrated in the long run. This issue should be dealt with respect to the convenience of people's dairy life, not the authority' territory struggle the integration of the registry and other land record may bring various effect in many other field in the country. The investment associated with building information infrastructure in real estate may be a important project for the country and people's bright future.
Finally, in the conclusion of this thesis, the problems faced with our present real estates registration system were discussed; present situation of the real estate and discord with the registration and the substantial relationship on the right change, distrust of the public confidence, cooperative application system when registered, deficiency of substantial law regulations on the registration.
therefore, its improving method was suggested. Also the thesis is concluded that the real estate registration system, announcing the real right relations for the real estate which is said to the point of our property right would be continued to its administrative study and systematic study for the rapid developed social circumstances by considering the fact that the system has been excluded from the study due to that is only a simple procedure so far.

목차 (Table of Contents)

• 目次
• Ⅰ. 序論 = 1
• 1. 硏究의 目的 = 1
• 2. 硏究方法 및 硏究範圍 = 4
• Ⅱ. 登記의 推定力 = 5
• 1. 序 = 5
• (1) 意義 = 5
• (2) 推定力의 認定根據 = 6
• 2. 推定力의 本質 = 9
• (1) 推定의 意味 = 9
• (2) 推定力은 事實上의 推定인가, 法律上의 推定인가? = 10
• 1) 槪說 = 10
• 2) 學說 = 11
• 3) 關聯判例 = 13
• 3. 推定力의 範圍 = 14
• (1) 權利의 推定 = 14
• (2) 登記原因 및 기타 登記記載事項의 推定 = 19
• 1) 登記原因의 推定 = 19
• 2) 각종의 契約條項 = 21
• 3) 登記簿上 權利主體의 能力 = 22
• 4) 不動産의 物理的 性狀 = 23
• (3) 節次의 適法推定 = 23
• 1) 一般論 = 23
• 2) 登記節次의 前提要件 = 24
• 3) 回復登記節次의 適法推定 = 27
• (4) 登記事項 이외의 事實의 推定 = 28
• 4. 登記의 推定의 效力 = 29
• (1) 立證責任의 輕減 및 轉換 = 29
• (2) 推定의 利益과 不利益의 問題 = 30
• (3) 推定力의 援用의 問題 = 31
• (4) 登記의 推定力에 따른 附隨的 效果 = 32
• 1) 登記의 信賴와 無過失 = 32
• 2) 登記의 內容에 관한 惡意의 推定 = 33
• 5. 登記의 推定力의 飜覆 = 33
• Ⅲ. 公信力의 問題 = 35
• 1. 序說 = 35
• 2. 登記의 公信力確保에 관한 理論的 背景 = 37
• (1) 公信의 原則의 沿革 = 37
• (2) 公示의 原則과 公信의 原則 = 38
• (3) 公信力 認定의 必要性 = 41
• (4) 公信力의 內容 = 45
• 3. 不動産登記의 公信力에 대한 각국의 立法例 = 50
• (1) 不動産登記의 公信力을 認定하는 立法例 = 50
• 1) 獨逸 = 50
• 2) 스위스 = 53
• 3) 美國 = 55
• (2) 不動産登記의 公信力을 否定하는 立法例 = 59
• 1) 프랑스 = 59
• 2) 日本 = 60
• (3) 立法例의 比較 = 61
• 4. 現行 登記制度와 관련된 問題點 = 64
• (1) 登記制度의 槪觀 = 64
• (2) 不實登記 = 67
• (3) 現行 不動産 登記制度와 관련된 問題點 = 80
• 5. 不動産登記의 公信力認定을 위한 改善方案 = 86
• (1) 登記官의 實質的 審査權 = 86
• (2) 不動産帳簿의 一元化 = 87
• (3) 登記原因의 公證制度 = 88
• (4) 權原保險制度의 活性化 = 89
• (5) 登記訂正請求權과 그 保全制度 = 93
• (6) 기타 = 95
• 6. 結語 = 97
• Ⅳ. 結論 = 98
• 參考文獻 = 102
• 英文抄錄 = 105