반사회적 부동산 이중양도의 효력 (An Effect of Antisocial Double Transfer in The Real Estate)

서지정보

· 발행기관 : 중앙법학회
· 수록지 정보 : 중앙법학 / 18권 / 4호 / 7 ~ 42페이지
· 저자명 : 황경웅

초록

The precedent for effects of antisocial double transfer related to a real estate adopts the theory of absolute void which avoids trade between a seller and second buyer. Therefore, the ownership of real estate is still owned by a seller, anyone including first buyer can execute the cancellation of transfer registration under the second buyer and cancellation of registration under the subsequent purchase with a favor by substituting ownership of seller by insisting invalidity, and this invalidity cannot be confirmed by anyone.
However, the position of such precedents reveal various problems. First, because it adopts the logic that first buyer can claim a nullity by executing seller's right, the problem that whether contrapuntal right of seller on the second buyer which applies to illegal bailment exists or not can be occurred. Second, in case where a transfer registration of second buyer is based on the final judgement between seller and second buyer, the problem that first buyer cannot erase the registration of second buyer's ownership can be occurred. Third, the problem that safety of trade may be threatened because a subsequent purchaser who has purchased in a good faith from second buyer cannot be protected.
Although there are multiple theories to solve such problems, these are not satisfactory. Thus, following personal opinion is suggested to solve such problems.
In my personal opinion, the theory of relative void which sees trade between seller and second buyer as invalid is valid. According to this logic, because first buyer claims a cancellation of registration registered to second buyer that is invalid for asset and relationship as a right of oneself rather than a right of seller, there is no concern to collide with materielle rechtskraft. In addition, the illegal cause bailment is only applied when a person who pays and a gainer due to return of payment is an identical person, however, in case of double transfer, because a person who pays is a seller and a gainer due to a return of payment is not first buyer, above regulation cannot be applied. Lastly, by considering relative right of a claim for transfer registration of first buyer, because with the relative merits of first buyer, the one who first registers should be prioritized, the safety of trade can be protected.

영어초록

The precedent for effects of antisocial double transfer related to a real estate adopts the theory of absolute void which avoids trade between a seller and second buyer. Therefore, the ownership of real estate is still owned by a seller, anyone including first buyer can execute the cancellation of transfer registration under the second buyer and cancellation of registration under the subsequent purchase with a favor by substituting ownership of seller by insisting invalidity, and this invalidity cannot be confirmed by anyone.
However, the position of such precedents reveal various problems. First, because it adopts the logic that first buyer can claim a nullity by executing seller's right, the problem that whether contrapuntal right of seller on the second buyer which applies to illegal bailment exists or not can be occurred. Second, in case where a transfer registration of second buyer is based on the final judgement between seller and second buyer, the problem that first buyer cannot erase the registration of second buyer's ownership can be occurred. Third, the problem that safety of trade may be threatened because a subsequent purchaser who has purchased in a good faith from second buyer cannot be protected.
Although there are multiple theories to solve such problems, these are not satisfactory. Thus, following personal opinion is suggested to solve such problems.
In my personal opinion, the theory of relative void which sees trade between seller and second buyer as invalid is valid. According to this logic, because first buyer claims a cancellation of registration registered to second buyer that is invalid for asset and relationship as a right of oneself rather than a right of seller, there is no concern to collide with materielle rechtskraft. In addition, the illegal cause bailment is only applied when a person who pays and a gainer due to return of payment is an identical person, however, in case of double transfer, because a person who pays is a seller and a gainer due to a return of payment is not first buyer, above regulation cannot be applied. Lastly, by considering relative right of a claim for transfer registration of first buyer, because with the relative merits of first buyer, the one who first registers should be prioritized, the safety of trade can be protected.

참고자료

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