실체관계에 부합하는 등기 법리에 대한 비판적 고찰 - 부동산물권변동의 관점에서

The Korean Civil Act adopts a constitutive registration system for transfers of real rights and, unlike German law, incorporated the Japanese Real Property Registration Act that does not involve notarization and does not recognize the public confidence of real estate registration. This framework leaves the system vulnerable to defective registrations, leading courts to rely on the doctrine of “registration conforming to the substantive relationship”, a standard whose terminology remains abstract and whose scope is unclear. Recent Supreme Court decisions tying validity to the existence or exercisability of a registration claim further threaten the coherence of Korea’s real-rights transfer regime. This article critiques the limitations revealed in the latest Supreme Court ruling and traces the doctrine’s formation, evolution, and reception from Japanese jurisprudence into Korean law. It then reconstructs a new analytical framework centered on the registrant’s intent to apply for registration and the structure of the proprietary act, offering a critical reassessment of the Court’s registration-claim model. The article advances three propositions: first, courts should evaluate validity through a two-step inquiry (1) the legality of the proprietary act and (2) the gravity of procedural defects. Second, the proprietary act, though embedded in the obligatory contract, produces effects only upon payment of the price (a modified non-independence theory reflecting party intent). Third, the registration-claim standard stems from an uncritical reception of Japanese doctrine and conflicts with the legal nature of the claim and the text and purpose of Article 186 of the Korean Civil Act.