不動産 二重賣買에 관한 立法論的 考察 - A Legislative Study on the Double Sale of Real Estate -

Abstract

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.