부동산등기에 「법률상의 추정」 인정의 타당성에 관한 一考 ― 대법원 1992. 10. 27. 선고 92다30047 판결을 중심으로

This paper aims to examine the issues of the “legal presumption” adopted by general theory and Korean case law in real estate registration. The general theory and Korean court precedents recognize the presumption of real estate registration. While recognizing this presumption is natural, discussions have centered on its legal basis and nature. The proposed grounds for recognizing this presumption include: (i) Article 200 of the Korean Civil Code, which stipulates the presumption of occupation, (ii) reasonable distribution of the burden of proof, (iii) registration as an essential element of changes in real rights, and (iv) the likelihood that the registration aligns with the true legal rights. The Supreme Court of Korea has acknowledged this presumption based on likelihood. Regarding the nature of this presumption, there are two different views of “factual presumption theory” and the “legal presumption theory”, with both the prevailing theory and case law adopting the latter. However, the reasoning behind some of the proposed legal bases is problematic. The view based on (i) occupation presumption is unconvincing because of the following reasons: (a) occupation rights fundamentally differ from other real rights that use registration as a publicity measure, b) occupation as a means of publicity is highly unreliable, (c) the material scope of occupation presumption is limited to movables, and (d) its personal scope is also restricted. The view based on (ii) reasonable burden of proof allocation overlooks the logical order between registration presumption and burden of proof. The view based on (iii) registration as an element of changes in real estate rights is also unpersuasive because registration is a necessary but not a sufficient condition for changes in real estate property rights. Therefore, the view based on (iv) likelihood is the most acceptable one. However, it still remains to be seen whether the registration presumption should be classified as a factual presumption or a legal presumption. Even if there is a considerable likelihood that registration aligns with the substantive legal relationship, it cannot be said that there is a high degree of probability. Given that recognizing a legal presumption would result in a shift of the burden of proof, it is unreasonable to acknowledge a legal presumption for registration. Instead, it is more appropriate to recognize it as a factual presumption. The Supreme Court of Korea, in its judgment on October 27, 1992 (Case No. 92Da30047), stated that registration alone carries presumption and placed the burden of proof on the opposing party of person registered. However, it is regrettable that the court recognized the presumption—specifically, a legal presumption—without clearly explaining its legal basis. Given the absence of explicit statutory provisions and the lack of a very high probability that registration reflects substantive rights, the precedent recognizing a legal presumption for registration should be reconsidered.