中間省略登記의 有效性에 관한 硏究
(A) Study on the Validity of Intermediate Omission Registration
중간생략등기 유효성 부동산 부동산등기제도;
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The registration practice in Korea is that the registration is transferred from the present owner to the final buyer whereas a registration is omitted to an intermediate buyer although the intermediate buyer is a doer of an legal act. Under the present Civil Law which takes on formalism, a real right becomes effective when the registration has been made in addition to an agreement on the change of reality right. Therefore, the validity of the intermediate registration omission cannot be recognized because the intermediate legal transaction should be registered by the law. However, intermediate registration omissions have been practiced due to various reasons from the age of the old Civil Law, and the practice is still being made even under the present Civil Law. Therefore, the validity of the intermediate registration omission has been recognized in some precedents and lots of theories. Such recognition is based on the public notice of true right relations and transaction safety. This study looked into judicial precedents and theories regarding the intermediate registration omission practices, and into whether the validity of the omission after the regulatory law is enacted should be recognized, and presents interpretational alternatives and legislative alternatives for it. First, Chapter 2 looked into the significance and generation cause of the omission as a general theory on the intermediate registration omission to know what the intermediate registration omission is and the social and economic backdrop of the intermediate registration omission practice and also related theories and judicial precedents made in Korea and other countries. Next, Chapter 3 considered the judicial precedents concerning the validity of the intermediate registration omission. An intermediate registration omission is, if having been already is done, deemed effective on account of the following reasons: Firstly, a strict criminal punishment stipulation of a special realty registration Act cannot have any logical essential relation that it should have a judical effectiveness. Namely, a criminal punishment is one thing, and the effectiveness of an judicial act is another. For the sake of the safety of transactions, the stipulation forbidding intermediate registration omissions should be viewed as a regulatory stipulation and so the registration which omitted an intermediate registration should be valid regardless of a criminal punishment. Secondly, the public recognition function of registration is mainly the public recognition of the present true right relation with the realty and the public recognition of the process of reality change has nothing more than a subordinate significance, so the effectiveness should be recognized. Thirdly, as for the independence of reality action, when there has been made a transaction between the owner and an intermediate buyer, the buyer has paid the price and has received the necessary documents for registration, it can be deemed that the reality action has taken place. Accordingly, if the intermediate buyer performs a reality action with another person on the basis of the reality right, the person who mutatis mutandis receives the reality right is deemed to have performed a reality action. Therefore, an intermediate registration-omitted registration should be deemed effective on the theoretical basis like this. Fourthly, an intermediate registration-omitted registration should be valid for the sake of legal stability and transaction safety. Moreover, if the civil law nullifies an intermediate registration-omitted registration because of not recognizing the public power of the registration, a innocent third person who did not know the intermediate registration omission comes to lose the ownership, which greatly harm public transaction safety. Thus, it is deemed reasonable that such practice is recognized effective under the present Civil Law. As for the registration of an intermediate registration-omitted realty, as considered above, its effectiveness should be recognized, but the claim for an intermediate registration-omitted registration should not be recognized. Before the intermediate registration-omitted registration has not been completed, no hazard takes place to transaction safety because there incur no wasteful costs by repeated registration processes and a third innocent buyer are not damaged at all. Hence, it is reasonable in terms of legal practice safety that the claim for an intermediate registration-omitted registration should not be recognized. After all, intermediate registration omission practices must be prevented by means of stern law enforcement. To this end, the realty registration system should be improved to enhance the public reliability and actual inspection of registrations, and the already-published law should be enforced without errors and also judicial attitude toward judgment on realty registration should be changed. Whatever good system to prevent intermediate registration omissions there may be, intermediate registration omissions will take place continually without people's change of thought thereof. People's change of consciousness of realty registration must be made accordingly.