부동산등기의 공신력- 독일법을 중심으로 -

Abstract

Articles 892 and 893 of the German Civil Code acknowledge the accuracy of the contents of the Land Register. Accordingly, even in case where an owner under the Land Register as a genuine right holder disposed of real estate to the good-faith third party, the third party is protected. The Civil Code of Korea does not acknowledge the accuracy of the contents of the Land Register, and thus, a bona-fide(good-faith) acquisition is not acknowledged in real estate. Preussen acknowledged the accuracy of the contents of the registration of the establishment of mortgage in the General Land Right Act (“Allgemeines Landrecht für die Preußischen Staaten”) of the year of 1794, and extended the acknowledgment to real rights over immovables in the Ownership Acquisition Act (“Eigentumserwerbsgesetz”) of the year of 1872. The law of Preussen influenced the enactment of the German Civil Code, which remains still valid to the present. The elements for the acknowledgment of accuracy of the contents of the Land Register consist of an acquisition by legal transaction, inaccuracy of the Land Register, good-faith, no registration of objection and etc. If the above elements are satisfied, a bona-fide(good-faith) acquirer is protected as a right holder. The Civil Code of Korea protects the good-faith third party in Articles 107 (2), 108 (2), 109 (3), and 110 (3), which actually triggers the effect of acknowledging the accuracy of the contents of the Land Register. Further, the accuracy of the contents of the Land Register is acknowledged by other separate laws such as "the proviso to Article 3 (1) of the Special Act on Asset Confiscation of Pro-Japanese and Anti-national Collaborators to the State, Article 4 (3) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, and the proviso to Article 11 of the Provisional Registration Security Act. The Civil Code of Korea needs to be amended for the acknowledgment of the accuracy of the contents of the Land Register in order to protect the good-faith third party who was involved in a land transaction in reliance upon the Land Register. For the acknowledgment of the accuracy of the contents of registration, a registration official’s actual review right should be firmly established, and the damages system for a genuine owner should be prepared.