등기를 하여야 부동산물권변동의 효력이 발생하는 현행 입법주의에 대한 평가

The current Civil Act had made a historic turn from the so-called Intentionism(the change in a real right over an immovable is enough to take effect between the contract parties by a contract alone, but it cannot be set up against any third party, unless it is registered) to the so-called Formalism(the registration is needed for the change in a real right by a juristic act over an immovable to take effect so far as between the contract parties). The purpose of this theses is to evaluate, in the light of legislative intent and the ideal type of registration system, how to have been settled and unfolded, whether there exists any theory contrary to the Formalism, and if so, how to complement and improve it, now at this occasion as more than half a century has passed since the Civil Act effected. In this theses, to begin with, the conclusion is derived that the Formalism is to be maintained, if the following theories and judicial precedents which hinder or make the Formalism meaningless are improved, because regression again to the Intentionism would cause more confusions from abandoning the Formalism. First, even though the Act on Special Measures for the Registration of Real Estate enforces registration of ownership transfer on an immovable within a certain period of time, in view of reality that many still do not register, it would be desirable to put mandatory provision which enforces registration of ownership preservation within a certain period of time. On the other hand, although inheritance is one of changes in a real right pursuant to provisions of law, there is a need also to enforce registration of inheritance, because many complex legal disputes arise without doing registration of inheritance for a long time. Second, the registration institutions should steadily be adjusted and improved in order the Formalism may fully excel its true worth. It can be said that it is ideal for the registration system to disclosure not only the current true real rights but also the true processes or causes of a real estate transaction. However, our judicial precedents up to now take the standpoint that the registration which only discloses the true real right is valid, even though it does not discloses the processes or causes of a real estate transaction. So, that standpoint should be avoided. Third, the most urgent thing is to thraw away the theories of judicial precedents which do not comply with the Formalism or still have remnants of the Intentionism. For example, the judicial precedents in regard to the extinctive prescription of claim for registration of a purchaser who does not register, the nature of resale of a purchaser who does not register, the validity of registration from the first seller to the final purchaser omitting the intermediate purchaser, the presumption of intention of holding as owner for the purchaser who buys an unregistered immovable, the relation between the person who has completed the requisites of aquisitive prescription and a third party, should be thoroughly reexamined. Fourth, the change in a real right over an immovable through stipulations of law, not by a juristic act, takes effect without registration, because the Formalism does not impose upon that change. So the establishment of each statutory real right needs to be strictly interpreted and the absurdities which each statutory real right( for instance, 'Right of Rerention', 'Statutory Superficies by Customary Law', 'Right for Grave Site') has should be removed as soon as possible.