부동산 공시방법의 역사에 관한 비교법적 고찰

Abstract

Publicity of legal transactions purporting to transfer interests in immovable property took a primitive form in close-knit communities. At a time when neighbors knew each other, publicity of land conveyances was given by highly ceremonial performances that took place on the land itself. Symbolic acts such as the handing over of a turf or a twig, accompanied by an oral declaration before a group of neighbors, were deemed sufficient safeguards not only to the purchaser or transferee but also to third parties in general. Public recordation of interests in land was not a feature of Roman law, although there is historical evidence pointing to the existence during the pre-Christian era of an incipient system of land recordation developed in Roman provincial territories which were subject to Greek Law. Within the orbit of the Civil Law, a basic comparison may be drawn between the Germanic influenced legal systems on the one land, in which recordation is a requirement to create or constitute a right in rem(hence the label of “constitutive” recordation systems), and French inspired legal systems on the other, in which the act of recordation merely declares the existence of a right that has already been created by the will of the parties (hence the lavel of “declarative” recordation systems). This distinction is not generally used as a basis of comparison within the orbit of the Common Law, where the differences among recording systems rest by and large on the models provided by the Torrens and post-1925 English recordation systems on the one hand(referred to as “title registration”), and eclectic methods of public recordation coupled with title insurance that prevail in the United States (referred to as “recordation of deeds”), on the other hand.