청산절차를 거치지 않은 무효의 본등기에 기한 소유권이전등기의 효력 : 담보가등기에 대한 임의대위가 무효등기의 유용에 미치는 영향 고찰- 대상판결 : 대법원 2021. 2. 25. 선고 2016다232597 판결 -

Abstract

The supreme court decision is about a relatively complex case that is including many difficult legal issues in the area of real rights such as the liquidation procedure provided in Provisional Registration Security Act, diversion of null registration and registration in accordance with substantive legal relation, voluntary subrogation and supplementary registration for subrogation, etc. This case deals with if the principal registration without the liquidation procedure provided in Provisional Registration Security Act is valid, in the situation of the case what right the person who has performed obligation has, if the ownership transfer registration right from the null principal registration by the agreement of the parties concerned is valid against the person who has performed obligation instead, if the person who has the ownership transfer registration belongs to a bona fide third party provided in Article 11 of Provisional Registration Security Act, if the person who has been subrogated to the rights of the obligee needs requisites for setting up which is the same in assignment of nominative claim when it comes to exercise of the right of subrogation. This paper examines each sentence of the supreme court decision case and the relevant case in detail, reviews some of the issues of the cases critically, and supplements discussion regarding part of the issues omitted. In particular, this paper argues that the third party's ownership transfer registration right from the null principal registration by the agreement of the parties concerned is not in accordance with substantive legal relation against the person who has performed obligation instead, thus such diversion of null registration should not be permitted. Also, this paper suggests that although there are almost no theories and precedents regarding whether or not supplementary registration for subrogation is needed in order to exercise the right of subrogation against a third party purchaser in the area of voluntary subrogation, there is a need for application of Item 1 of Paragraph 2 of Article 482 of the Korean Civil Code even to voluntary subrogation.