부동산등기의 공신력 인정에 관한 소고

Abstract

The Civil Act adopts formalism regarding changes in real estate rights, but takes an exceptional form that denies the public trust of registration. However, in the current reality of real estate transactions and registration, the threat factors have decreased compared to the past when exceptions were recognized, while the need for recognition of public trust has significantly increased. Therefore, there is a need to go back to principles and recognize the public trust of registration. However, if public trust of registration is recognized, there is a possibility that a gap may arise in the protection of true rights holders, so institutional improvement must be carried out to resolve this. The review of improvement measures is as follows. First, introducing a notarization system in the registration process is ineffective. Notarization can help ensure the authenticity of the registration. However, considering the reality that the number of registration applications reaches 10 million per year and the reality of notaries, having them handle all of them may result in excessive costs and delays. Second, it is not appropriate for the registrar to conduct a substantive review. In a reality where the number of registrations handled by one registrar reaches 15,000 per year, if a substantive review were conducted on all of them, this would also result in excessive costs and delays. Third, it is necessary to introduce a damage compensation system. If the true right holder suffers damage due to the recognition of public trust of the registration, a system is needed to compensate for the damage. Since the target is only a small part, the cost required is limited, and if additional measures to secure authenticity are established, the scope can be further limited. Fourth, a system is needed to ensure the confirmation and correction of rights holders. At the time of registration, it is necessary to notify the registration obligor of the relevant fact to provide the rights holder with an opportunity to recognize the problem, and provide an opportunity for correction only in cases where an objection is raised. Fifth, it is necessary to preserve the certificate of registration cause in electronic form. Through this, we can expect to secure stable post-verification possibilities, secure the stability and reliability of the registration system, and increase work efficiency by expanding usability. Sixth, it is necessary to provide diverse and accurate information on real estate transactions. It is necessary to provide information by utilizing connections between various systems that have already been established, and to provide accurate information by institutionalizing periodic correction of inconsistencies in overlapping parts of related information. Seventh, continuous review of the use of cutting-edge technology is necessary. Reviewing the use of technology is worth continuing regardless of whether it is introduced or not, as it is itself a preparation for change.