미등기전매에 의한 매수인의 법적 지위

Abstract

2020 marks the 60th anniversary of the korean Civil Code. Although most of the contents of the current civil code, which has been in effect since January 1, 1960, have been accepted by the Japanese civil corporation, there are also considerable contents that have sought transformation by accepting completely different laws. One of the major changes is the law on real estate property rights changes. Under the old civil code, changes in real estate property rights due to legal actions cannot be opposed to a third party unless registered (Article 177). The Civil Code adopts the doctrine of formalism that the acquisition of, the loss of, or any alteration in, juristic act over the real property takes effect upon its registration as a method of public notice. This is simply a drastic change. The Supreme Court's case has also been making efforts to establish legal principles following the transition to formalism. Sixty years after the enactment of the Civil Code, we still find examples of some cases of real estate property rights changes that do not conform to or are contrary to formalism. In particular, this problem is more pronounced in relation to the buyer's legal status as a result of the unregistered resale of real estate. According to the precedent, the right to register ownership transfer acquired by the buyer through the unregistered resale is restricted in the nature of the right. The contents of these precedents cannot help but question whether the purchaser who has transferred the right to request the transfer of ownership under the will of the old civil code has been influenced by the law that the buyer cannot fight against a third party without registration. Taking this into account, we would like to examine the validity of the law based on the contents of the precedents established so far in relation to the buyer's legal status in the unregistered pre-sale as shown above. Consequently, the claim for transfer of ownership and transfer of ownership acquired by the purchaser through a non-registered pre-sale is deemed to be transferable as a creditor claim. Therefore, the attitude of the precedent that the seller's consent should be obtained should be changed because trust follows in the implementation process.