不動産 二重賣買에 관한 立法論的 考察

• 영문명: A Legislative Study on the Double Sale of Real Estate
• 발행기관: 한국재산법학회
• 저자명: 李炫錫(Lee, Hyun-Seok)
• 간행물 정보: 『재산법연구』財産法硏究 第27卷 第1號, 429~450쪽, 전체 22쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2010.06.30

영문 초록

After the seller sells their real estate to the first purchaser, the seller goes on to conclude a separate contract with a second purchaser and completes a registration of transfer of ownership. This kind of case is called a double sale of real estate. Generally speaking, the main party who is to be protected against double sale of real estate is the first purchaser. According to various views and case studies, they take on the antisocial nullification perspective and states that double sale of real estate falls under the category of Civil Law No. 103 antisocial law action and will therefore become void. This void is considered absolute and cannot be contested even by an innocent third party. As a result, the innocent party who had purchased the property in question from the second purchaser cannot be protected. Antisocial nullification perspective, taking on by the case, has been the support to protect the first assignee. That is following by our Civil Law which select the formalism on transfer of real rights. But as previously stated, antisocial nullification perspective has a lot of problems and other theories which show up in order to solve the problems don't do them perfectly either. So restitution perspective by tort is supposed to be the most valid view as of now, but it still has the problems under the construction of Civil Law which takes on the principle of pecuniary compensation for damage. Finally for solving the various problems from the antisocial double sale, it is more valid to provide explicitly that restitution as a compensation for damage is possible like German Civil Law. In these aspects, the revised bill of Civil Law No. 394-1, 'Compensation for damage is done by money. But creditor can claim the restitution if there are proper reasons.', is judged well-timed provision. Especially antisocial double sale might be the typical case to admit the restitution as a exception of the pecuniary compensation for damage.

목차

Ⅰ. 序論

Ⅱ. 反社會的 無效論

Ⅲ. 외국의 判例와 立法例

Ⅳ. 不法原因給與와의 관계

Ⅴ. 善意의 轉得者 보호

Ⅵ. 새로운 이론

Ⅶ. 結語

키워드

부동산 이중매매 반사회적 법률행위 불법원인급여 선의의 제3자 보호 채권자대위권 채권자취소권 불법행위 원상회복 double sale of real estate performance for illegal causes antisocial law action innocent third party protection substitutionary right of obligee revocation of obligee right tort restitution