허위표시 제3자의 신뢰 보호 범위 ― 대법원 2010. 3. 25. 선고 2009다35743 판결을 중심으로 ―

Abstract

In the Supreme Court 2009da35743 case, the parties made a lease contract, and a the ‘Chonsegwon’ was established to furnish the immovable as a security. The ‘Chonsegwon’ contract only included the security right, whereas the lease was concluded with the lease contract. After the expiration of the resistered peorid of Chonsegwon, the deposit was returned to the lessee. ‘Chonsegwon’ as the security right for the deposit did not exist any more. However, the ‘Chonsegwon’ registration was not removed by the parties. Then, a person provisionally seized the claim for the deposit with the reliance that a new contract of ‘Chonsegwon’ was considered to be made under the same conditions as the previous one. The Supreme Court opined that the ‘Chonsegwon’ contract was a sham transaction, and, thus, the provisional seizure obligee can be protected under Article 108 (2) of the Korean Civil Code. However, in this case, the distinctions between the declaration of intention on the ‘Chonsegwon contract’ and the parties' intention was indistinguishable. The legal relation based on a new contract of ‘Chonsegwon’ that was made under Article 312 (4) was not necessarily derived from the ‘Chonsegwon’ contract, and could not be inferred by a reasonable person. So the provisional seizure obligee acting in good faith can not be protected as the third party by Article 108 (2) of the Korean Civil Code.