不動産賣買에서 危險移轉의 時期 再考

Abstract

In the time of transfer of risk in real-estate transactions, it's the purpose that presentation of an apposite interpretation and theoretical improved scheme of the legislation under the operative law. Although the Korean legislative system took the formalism about transfer of a real rights over immovables, it only stipulates the principle of liability for risk obligor and does not have clear provision about the time of transfer of risk. But it is not a problem of the interpretation. It is dealt with an issue of the legislation. Therefore, in the accepted theory during the real-estate transactions, if the delivery does before the registration of transfer, vendee has the risk in the time of delivery of the real-estate. And if the registration of transfer does before the delivery, the risk transfer to the vendee in the time of the registration of transfer. But it has weak legal basis under the Korean operative law. Preferably when the vendor completed his debt such as the delivery and the registration of transfer of the object, the vendee has the risk. This interpretation is proper under the operative law. However it is hard to accept it in the equity and justice. Accordingly this must be solved by the legislation. It seem to me that the person, who exercises the material control of the real estate, has the use and beneficiary right of relevant it than the one registered. So it is reasonable and persuasive that he has the risk bearing. Therefore the accepted theory would be valid in case if the vendee delivered the real estate without the transfer of registration, the vendee would have the risk of it. But in that case the vendor still has the material control of the real estate. So he should bear the risk of it. It will have the logical consistency and solve the impartiality. After all, in principle it should be legislated that the risk of accidental destroy will be transferred to vendee when the real estate is delivered in the real estate closing. Through that legislation, the vendor should hand over the registered bond before the transfer. Even if the registration was put off by the reason of progress of registration procedure, the risk will be delivered by only transfer. This will protect the result that the contingency of the point of register time control the time of risk transfer. And this will remove the conflicts between vendor and vendee.