소유권이전등기청구권의 양도를 원인으로 한 중간생략등기의 가부 : 명의신탁해지 사례의 경우

Abstract

The above judicial precedent implies that in case the right of the ownership transfer registration request has been transferred due to the cancellation of the nominal transfer agreement, the legal principle for the limiting the transfer of the ownership transfer registration request due to the sale and purchase would not apply. Namely, the original court admits the plaintiff’s direct request for the ownership transfer, but the Supreme Court threw out the original ruling for the lack of the condition, namely, ‘debtor’s agreement or consent. The Supreme Court added that its former precedent regarding the transfer of the ownership transfer registration request due to the acquisition by prescription (Supreme Court ruling 2015Da36167) could not be invoked for the reason that in case of the acquisition by prescription, the legal theory about the limitation of the ownership transfer registration request could not be applied. The researcher agrees to the conclusion of the judicial precedent, but does not think that the legal theory of both the original and Supreme Court rulings are reasonable; “The ownership transfer registration request should be based on the the relationship between the concerned parties or ‘the contractual claim’, and even if it can be transferable, the debtor should agree or consent to it. If it should be admitted, ‘the direct request for the interim omitted registration’ would be permitted. If so, the direct request for the interim omitted registration would be permitted, which violates the cause of the Special Real Estate Registration Act, and above all, the illegal real estate transactions would be facilitated. So, the real estate purchase contract should be made and thereby, the real estate should be transferred sequentially according to Real Name Property Act. In the State of Ontario, Canada, the real estates can be registered directly according to the Direction Regarding Title system, which seems to be effective in terms of time and cost. In Korea, the provision regarding the real estate registration by certain successors may well need to be specified in the Real Estate Registration Act.