부동산등기의 추정력의 본질과 효과

Presumptive nature and effects of the recordation of real estate

We have recognized the presumptive effect to the recordation of real estate, and used all together the concept of the presumptive effect as the meaning of the ‘presumptive effect by law’ and the ‘presumption of right’, that is to say, the meaning of the ‘presumption of right by law’. We have all agreed that the presumptive effect of recordation encompasses the substantive facts as well as the recordation-procedural facts, and the incident facts. However, we have had little sufficient and systematic discussions on the means to rebut the presumption. Our erroneous understanding as to the concept of ‘the presumption of right’ has caused the difficulties in the confirmation of the objects of presumption, but also the trouble in the systematic understanding of the means to rebut the presumption. In light of above, what follows is the summary of what I have argued before. First, the true meaning of the ‘presumption of right’ is not the presumption of ‘rights’ but that of ‘facts’, and the term is only the compressive expression of ‘the legal principle that the existence of a right is eventually presumed’. The right definition of the ‘presumption of right’ is the presumption of the fact that there are sufficient facts needed for the recorded right. Second, the presumptive effect of the recordation of real estate encompasses the three types of facts : the substantive facts ; the recordation-procedural facts ; the incident facts. Especially, the substantive facts originally mean a realty agreement, but also mean a obligative contract, because a realty agreement and a obligative contract are both needed for the recorded right. Third, the rebuttal against the presumption is generally accomplished simply by the proof of the facts that are not reconcilable with the substantive and procedural facts. Finally, in case of ‘Special Statutes of Recording Procedure’, given the procedural characteristics and the legislative goals, in addition to the substantive and recordation-procedural facts, the scope of presumption encompasses every other fact needed for the recorded right. Therefore, one who wants to rebut the presumption should prove not only the facts that are not reconcilable with the substantive and recordation-procedural facts but also all other facts that are not reconcilable with the recorded right.