우리나라에서의 物權行爲의 認否

Abstract

1. An Introduction German Civil Code provides definitely “Vertrag” that means contract on credit(belonging to act of credit) in its Article 873 Clause 1, and “Einigung” that means agreement of real right in its Article 929. Especially, German Civil Code provides definitely “Auflassung” that means the agreement of real right transfering ownership, in its Article 925 Clause 1. Therefore, in the German Civil Code, act of credit has been observed, act of real right separated action from such an act of credit can be also recognized. And Then, Korean Civil Code does not have a clear distinction between act of real right and act of credit. Because of this, in Korea theories are divided in whether we admit to act of real rights or not. 2. Concept on Act of Real Right in Korea, Concept on act of real right is discussed in connection with the components of act of real right. Also, approval or disapproval of act of real right is associated with problem of independence of act of real right. 3. Theories on approval or disapproval of act of real right In this theories, there are approval, disapproval and another kinds(eclecticism, dogma on actual act of real right). ① The basises of theory on approval of act of real right are as follows. Namely, the basises in positive law(such as Korean Civil Code Article 568, Article 186, Article 188),the intention of the legislator, approval of the act of real right is profitable, act of real right and act of credit differ in legal detail and effect, interpretation of Korean Civil Code Article 374. 놞 The basises of theory on disapproval of act of real right are as follows. Namely,there are not basises positive law(positive law is not enough to certify act of real right,Korean Civil Code don갽t distinguish act of real right from act of credit), in the process of transfer of real right there is no evidence of act of real right, there is no actual profit in the case that we approve act of real right, the approval of act of real right distorts a concept of law, a result from the dependence of act of real right. 놟 In eclecticism, act of real right is approved in transfers of real right, but disapproved in establishments of restricted real right. In dogma on actual act of real right, act of real right in Korea is different from Korea 갾Auflassung갿 in German Civil Code, this does갽t admit a legal effect that is different from act of credit. 4. Review on the theories Of the basises of theory on approval of act of real right, 쥁he basises in positive law(such as Korean Civil Code Article 568, Article 186, Article 188), the intention of the legislator, approval of act of real right is profitable, act of real right and act of credit differ in legal detail and effect?are acceptable. But 쥁he interpretation of Korean Civil Code Article 374?is not acceptable. I think that all basises of theory on disapproval of act of real right are not acceptable. A eclecticism and dogma on actual act of real right are not acceptable for me. In establishment of restricted real right, also there is an act of real right. In Korea, I think that act of real right legally make legal effects discriminated those of act of credit. 5. Opinion From accordance with the feature of legal act and 줭n expression of real right is a discharge of obligation that occurs in an act of credit? act of real right being independent of act of credit is recognized. And 갾legal act갿 in Korean Civil Code Article 186 means act of real right, 갾transfer갿 in Korean Civil Code Article means the transfer of ownership by contract of real right. When act of real right is approved, safe deals are possible. And discriminating waiver of ownership from 줼wnership of a stolen or lost thing?is also possible. It make a validity of middle omission registration possible. And Korean Civil Code Article 464 admits act of real right and expression in real right.