공유물분할판결의 효력

Abstract

There is no contention in that the agreement of sharers regarding thedivision of real estate, shared land, corresponds to ‘Legal Act RegardingReal Estate’ of Civil Law Article 186 but opinions have been opposedabout the effects of judgment ordering the division of shared land. Generally, precedents regard that judgment ordering in-kind divisioncorresponds to judgment of Civil Law Article 187 and therefore, oncethe judgment is confirmed, the effect of transfer of ownership occursaccording to the contents of judgment even if the registration is not donewhile the minor theory argues that shared property division judgment justsubstitutes the agreement of division between sharers so the effect oftransfer of a real right does not occur if registration is not completedeven though the judgment is confirmed. Civil Law Article 269 Paragraph 1 provides that “If agreement has notestablished about the method of division, the sharer may claim thedivision to the court” but does not have any provisions about the targetor contents of formation by the judgement. As shown above, judging thatCivil Law prescribes shared property division judgment as supplementaryrecognized when no agreement was established between the parties,regarding the effect of shared property division judgment as substitutingthe agreement of division between sharers like the minor theory is theinterpretation consistent with the provisions of Civil Law. Rather,according to common view, precedents, it may cause confusion to legalrelation regarding shared property division because official notice relation硏究論文165regarding shared property division cannot be uniformly governed and theeffect of judgment ordering in-kind division and judgment ordering pricedivision should be identified separately. If following the minority theory, not only the above criticism tocommon view and precedents is not applied but also, risk for the safetyof transactions to be caused by defects of official notice relation from thetime of confirmation of shared property division judgement to registrationaccording to the contents is not a problem.