不動産 去來事故의 防止와 그 救濟方案에 관한 硏究

Abstract

Real estate transaction is one of inevitable activities not only in the realm of economy but also in that of society and production. Especially, real estate transaction is of great importance economically and socially, it needs to be devoted to national economic activities through ensuring its rationality, transparency and stability. However, it is not achieved to stabilize the price and equilibrate the demand and supply of real estate. The rules concerning real estate are extremely complicated and have excessive limit and restriction in consequence of complex social environment. There have been many accidents and mistakes in real estate transaction by reason of rigid rules, defective institutions resulting from historical, social interests, and inequitable practice of trading. This study focuses on establishing the cause and problem of accidents and mistakes of real estate transaction, and providing precautions and remedies against these accidents and mistakes. Firstly, the current public announcing system is defective because real estate register and general register have duality, registry officials have just formal screening authority, principle of public confidence is not applied to real estate register. Consequently it is not easy to verify and prevent the unreliable or mendacious register. And it is also impossible to protect those who had a belief and made a transaction on the appearance of the register in good faith. In order to unify the register, it is necessary to establish an agency tentatively named Real Estate Register Office under the judicature. It is also inevitable to empower the registry officials to substantially verify and prevent the unreliable register. After the previous measures are performed, it is possible to adopt the principle of public confidence into real estate register so as to pursue the stability of transaction. Before that, the adoption of title insurance is needed to provide a remedy to those who are in good faith but suffer from losses. Secondly, according to the current practice of transaction, making a normal 10 percent down payment when real estate transaction contract are signed, a buyer hands over an approximate 40 percent part payment before the due date, settles the balance generally a month after the contract. and apply for register with relevant documents received from a seller. However, a buyer is exposed to a risk beyond the reach of the law during the period between the contract and the completion of register. Though it is appropriate for the parties of a contract to complete their burden at the same time on the basis of equity and the principle of good faith because buying is an onerous contract, this idea is not actualized. The transaction needs a belt and braces approach through employing escrow system in which all the payment and relevant documents are kept and distributed by a neutral third party until the register is completed. Thirdly, the obligation of real estate agents to verify and explain should be strengthened. The obligation of them, which comes from the law and their expertise, requires them to account for whether any other claim exits on the property. The range of this explanation includes restrictions regarding transaction or usage according to relevant regulations as well as other claims which are not announced publicly through visiting the place where the property is. The explanation and certificate must be given to clients on the basis of completing the obligation. However the standard property form which brokers are using doesn't provide clear range of the duty to fulfill the obligation. And it also has other problems including almost similar form regardless of various kinds of transaction. The defects must be improved in this regard, and the revision of relevant laws is needed to clear the duty of real estate agents. Fourthly, the liability of the parties of real estate transaction must be expended. There are the factors of the risk coming from the parties of a contract: a lack of expertise regarding property, careless and inexperience with regard to the transaction, negligence of the duty of declaration and false and exaggerated advertisements resulting from sellers, claiming to cancel a contract or avoiding to settle the balance spring from buyers on the principle of rebus sic stantibus. It is proper to say the ultimate remedy depends on the parties. Therefore occasionally in need of help from experts, the parties should fulfill the fiduciary duty under the principle of utmost good faith. Modifying various laws and regulations is required. And real estate agents' obligation should be established to implement the fiduciary duty under the principle of utmost good faith on the ground of their expertise. Research and legislation need to be done to increase the stability and transparency of the transaction and to improve the system as well. With these omni-directional efforts, a number of accidents and mistakes can be prevented, which is the motivation and purpose of this thesis.