부동산등기의 추정력과 증명책임 - 대법원 2002. 2. 5. 선고, 2001다72029 판결을 중심으로 -

Abstract

The power of presumption in registration of real estate means the power to presume that the right recorded in registration of real estate must be granted literally only according to the registration no matter how it has been granted under the legal procedure and law. The power of presumption in registration has its own character so called ‘legal presumption of a right’. Unfortunately, the power of presumption in registration of real estate has been grounded on the Supreme Court Decisions, not grounded on any law. From that fact the problem can be issued whether it is right or not to admit the power of presumption in registration under no law. Its effect is extremely powerful enough to win a suit for a registered owner of real property against a plaintiff who can file a suit asserting that the right recorded in registration is his/hers Then, there is still a question how it is possible to break the legal presumption of a right. This proof method is called ‘diabolica proof’ or ‘proof of malice’ which means it is impossible to prove the affirmation of the non-existence of the right. In order to solve this problem it is very critical issue of determining the extent of the power of presumption in registration of real estate and through this case of the Supreme Court Decision 2001Da72029, the power of presumption in registration extends not only to the presumption of the right but also to the presumption of its cause of effect and its procedure of registration so that diabolical proof(proof of malice) for the power of presumption in registration can be destructed. In South Korea, accuracy of registration of real estate is well guaranteed and there is little possibility that presumption in registration has not demonstrated a right and registered owner properly. In addition, it is also reasonable to admit the power of presumption in registration with comparison of the comparative law in any other country. However, even though under the Current Real-estate Registration System has the power of presumption in registration of real estate been admitted and is its effect very powerful causing conversion of the proof responsibility, there is no reason of substantive enactment in law. For clarification of the allocation of burden of proof, it is necessary to go through legislation to have a ground of the power of presumption in registration of real estate. This Case of 2001Da72029 Decided February 5, 2002 has great significance that primarily clarifies the extent of the power of presumption in registration of real estate and means of destruction of the power of presumption for the first time.