중복등기의 효력과 등기부취득시효

Abstract

Duplicated registration refers to the case when an identical real estate was registered more than twice. It should not take place, but in reality there are many duplicated registration of real estate as far as a real estate is concerned and a plenty of case law to deal with it. It is highly debated among scholars which registration out of duplicated ones is valid and change of the precedent is witnessed. The current Korean Supreme Court takes on the so-called, ‘procedural eclecticism,' which means that the latter registration is invalid unless the former is not originally void. This approach is based on principle of one registration form per one real estate pursuant to section 15 of Registration of Real Estate Act. However, the principle merely means that additional registration can not be carried out if one registration form was filled out for one real estate. As a result, when the registration sheet was filled out twice for one real estate, we do not need to infer that the latter registration becomes invalid unless the former is void. What is most important in determining the validity of the duplicated registration is to comply with substantive lawapproach, which argues that the only registration identical to substantive legal relationship is valid. As far as acquisitive prescription by register is concerned, the Court held that invalid, duplicated registration can be its subject-matter because it is limited to the registration which does not violate the principle of one registration form per one real estate. But the Court's view is problematic. It is desirable for us to, in principle, interprete that the duplicated registration is subject to acquisitive prescription by register.