물권적청구권의 이행불능시의 전보배상청구권 —대법원 2012. 5. 17.선고 2010다28604 전원합의체 판결에 대한 평석—

Abstract

When an owner, based on his ownership rights, makes a claim against a registered person with incorrect registration for registration cancellation or recovery of true name in ownership registry, such claims are claims based on real rights similar to “Claim for Removal and Prevention of Disturbance against Article Owned,” set forth in Civil Act Article 214. On the other hand, if the owner loses his ownership and therefore could no longer file the aforementioned claims, there is a question of whether such owner may make claim for compensatory damages based on Civil Act Article 390. The Supreme Court's interpretation, as analyzed in the decision that this paper examines, is that the claim for compensatory damages based on Civil Act Article 390 arises when the obligation, originally based on contractual or legal relationship, is modified or expanded with the original claim's character retained. If the owner no longer is the rightful owner of the disputed property, then claims based on real rights, such as the cancellation of the registration claim, loses its legal ground and is no longer recognized to be valid. This interpretation is valid even if cancellation of the registration has been verified through ownership retention registration through a related action, because the claim's character as a claim based on real rights is not converted into a claim based on obligation rights. However, because the claims based on real rights are similar to the claims based on obligation rights and the claims for damages based on torts offer only limited protections to the actual property owners, the claim for compensatory damages based on Civil Act 390 should become available as remedy for impossibility of performance in case of real rights, in addition to the remedies already available under Civil Act Article 750.