가장행위로부터 파생된 법률관계에서 외관 신뢰보호의 범위―대법원 2020. 1. 30. 선고 2019다280375 판결―

Abstract

In the subject judgment, the appearance created by the false indication is a provisional registration, but in fact, the plaintiff is a person who has a stake in the main registration of the cause invalidation made by the first trial of the preceding case, which is not a third party in Article 108 (2), but the plaintiff. This issue is a matter of how far the scope of protection of trust in appearance is recognized in the case of legal relations derived from the act of the most important thing in relation to the recognition of the third person of the plaintiff who has completed the registration of ownership transfer and the registration of ownership transfer based on the registration of the invalidity of the cause unilaterally completed. The plaintiff, who is the predecessor of the subject judgment, did not recognize the third nature of the plaintiff because he did not fall under a third party who had an interest based on the appearance of the false indication. The purpose of Article 108 (2) is to protect the trust of a third party administered to the appearance. Accordingly, even if a third party of malicious intent is interposed after false indication, it is deeply related to the protection of trust that the beneficiary is protected under Article 108 (2) if the beneficiary is good intention. This means that it is necessary to grasp the scope of the third party protected in Article 108 (2), not only formally based on the rights relationship, but also based on whether the new legal interests are established based on false indications. The protection of third parties is determined by the profit form with third parties who have new interests based on the appearance created by the right holder and the false indication. In the end, the profit sentence between the right holder and the third party should be decided considering the necessity of protecting the trust in the appearance and the degree of the right holder's attribution. Considering the purpose of Article 108 (2), the degree of the rightful person’s attribution, and our legal system that does not recognize the credibility of real estate registration, the conclusion of the judgment of the plaintiff's third person is deemed reasonable. However, the logic development of the object judgment, which is the object of trust only by cutting off the registration and the main registration, is not a problem.