부실등기해소를 위한 방법론에 관한 비교법적 고찰 - 일본 부동산등기법으로부터의 示唆 -

Abstract

There are a few exaggerated aspects in the number of improper registrations which have been well known to everyone or expressed on documents. In fact, the number of improper registrations is far lower than that of improper real estate registrations. However, the notary of registration certificate involves ineffective and unreliable problems, which will cause a danger to produce malicious improper registrations if the notary is linked with public trust. Therefore, I believe that the gradual type, which strives for the authenticity of registration by confirming the person himself/herself and the origin of the registration shown as Japanese case. First of all, the preventive system to prevent improper registrations includes judicial scrivener, land and house investigator, unification of the ledger and registration, address confirmation system, analogical application under Clause 2, Article 94 of Japanese Civil Law, etc. In particular, Japanese public registration officials have the formal inspection rights, which strive for speedy registration. In order to prevent predictable improper registration, the ledger and registration has been unified, which authorizes the mark of the registration. Recently revised Japanese Real Estate Registration Regulations accept online registration application and strengthen to confirm the person himself/herself by using electronic signature and electronic confirmation system as an alternative means of the seal impression certificate, which will ultimately contribute to the prevention of improper registration. Online registration application is expected to become common as a chain of Registration Computerization in the near future in Korea. Accordingly, the Japanese Real Estate Registration System which has been recently revised will be the model of our future system. Originally, this subject is under systemic argument rather than law analysis, so therefore it is difficult to evaluate the objectiveness. In particular, the discussion on the Real Estate Registration System, standing between numerous people who interested, can cause a severe fight to keep so-called ‘own rice bowl (selfish ownprofit)' as we experienced in the discussion on notary system in 1980’s. Nevertheless, the reason I passively insist the point on the introduction of the notary system is to demand intrinsic discussion on whether the notary system is appropriate in practical business of Real Estate Reality Right Change in Korea before unquestioningly accepting the system. As mentioned above, although the Reality Right Change of Japanese Civil Law adopts Registration System of France Law, its Real Estate Registration Regulations have been influenced by German Law. Although Korea has adopted the German Registration System on the Real Estate Reality Right Change, there is a timely discontinuation between law action and registration. So Japanese Registration System has been expropriated to Korean registration system. Based on the assumption of this fact, the Japanese Registration System is very suggestive on Korean System. In the light of the history and operational reality of the registration system, I believe that Japanese Improper Registration Prevention System is a rather easily approachable and realistic scheme compared with other countries’ systems. In my opinion, the introduction of Notary System and Public Trust demands to revise Article 186 of Civil Law, so therefore continuous discussions and inquisitive studies shall be carried out first. As the Notary System should be gradually introduced, a convenient means is appropriate to confirm the person himself/herself and the authenticity of the registration. As online registration becomes settled down, the importance of the functions mentioned above will gradually increase.