민법 제186조의 ‘법률행위’에 대한 또 하나의 해석

Abstract

In Korea, as in Germany, the title of land is transferred by conveyance and registration in accordance with Article 186 of the Civil Code. Contract alone is not a sufficient requisite for the valid transfer of land title. Before the enaction of the present Korean Civil Code, land title could be transferred by contract alone without registration, as in French, on accordance with Article 176 of the old Civil Code that was the Japanese Civil Code implemented to Korea in 1912. But the new Civil Code that enacted in 1958 changes from the principle of contract to the principle of registration. Since the enaction of the present Korea Civil Code, civil law scholars have disputed as to the independence and the time of conveyance . The concept of independence of conveyance is made by Savigny(Friedrich Carl von Savigny 1779-1861). He worked with the Roman Law which accepted that the title of land was transferred by two tracks: traditio and solutio. Two tracks were different in that traditio was linked with contract but solutio was not. In Roman Law the title of land was transferred with both requisites of iusta causa and traditio. After Savigny found iusta causa that was common factor in both traditio and solutio, was conveyance, the definition of conveyance and the independence of conveyance have been hot issues in civil law systems. One issue is whether conveyance is simultaneously accomplished at the time of contract or at the different time of contract. Another issue is that whether conveyance shall be null and void when the contract would be null and void. In this paper, I focuse on the controvercis as to the conveyance theory in the light of the Roman Law and the theory of Saviny . The independence of conyeance can be apprehended though the definition seperated from contract and the different time of conveyance from contract. I agree the definition of the conveyance is necessary to capture the poperty transaction, expecially in movable goods more than immovable goods. But, conveyance is simultaneously accomplished at the same time of contract. I don't agree the validity of conveyance is independently assessed regardless of the invalidity of contract, because The Roman Law and Saviny had no idea of the validity relationship between conveyance and contract and the Roman Law demanded the completion of contract(emptio perfecta) to tranfer land title.