眞正名義回復을 위한 所有權移轉登記請求

• 영문명: Registration Demand of Ownership Transfer for Recovery of Authentic Name
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 崔彰烈(Chang-Ryeol Choi)
• 간행물 정보: 『비교사법』比較私法 제13권 제1호, 369~419쪽, 전체 51쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2006.03.01

영문 초록

  Once an invalid registration inconsistent with actual condition is made, then making the invalid registration valid by correcting it is by the means of cancellation of registration of that invalid one. But someone argues that demanding not the type of cancellation of registration, but transfer registration for recovery of authentic name based on the ownership. However, such a registration is unable to indicate the change process of the registration, so it may infringe on the interests of those having new interest from the reason invalid registration.
  In regard with this, Japanese precedent accepted the registration demand of ownership transfer for recovery of authentic name from long before, but its main case was for recovering the registration of the property nominally trusted. Our country admitted the validity of nominal trust, so the supreme court has taken on a position to deny it due to little need of accepting it. But on entering 1990, the registration demand of ownership transfer for recovery of authentic name was admitted in that case that right exercising is restricted by vested power due to losing at the lawsuit demanding registration cancellation. Furthermore, for the reason that the vested power of a decision only affects the text, but the cause of the decision, so the registration demand of ownership transfer for recovery of authentic name by the losing party at registration demand of ownership transfer based on sale got to be accepted, which came up with the fear of breakdown of the vested power system. Thus, the supreme court precedent in 2001, overthrew the decision of 1990 by ruling that the registration cancellation demand for reason invalidation and the registration demand of ownership transfer for recovery of authentic name have substantially same objects of the lawsuit, which is contradictory to vested power.
  Hereby this article first explored arguments as to whether the registration demand of ownership transfer for recovery of authentic name is allowed or not in Japan, and then whether the registration demand of ownership transfer for recovery of authentic name would be allowed in our country, if so, in what extent it is permitted.
  As a results, following conclusion is reached. First, Japan has adopted intentionalism in the change of a authentic right, and not accepted the validity of nominal trust, so needs to accept the registration demand of ownership transfer for recovery of authentic name, whereas our country has adopted formalism in the change of a authentic right, and accepted the validity of nominal trust hitherto, so does not largely need to use the above method. Second, the ground to accept the validity of nominal trust should be thought to lie in authentic vested impediment and abatement demand, and it can be affirmed in convenient case of coinciding the registration name and substantial relation, but should be limited to the case not infringing on a third"s party"s interest. Third, in case of contradiction to vested power, the registration demand of ownership transfer for recovery of authentic name should be denied. Since the registration cancellation demand for reason invalidation and the registration demand of ownership transfer for recovery of authentic name have different objects of a lawsuit, but they are in an opposite relation to the upheld legal relation at the previous lawsuit.

목차

Ⅰ. 序論
Ⅱ. 眞正名義回復登記請求의 許容與否에 관한 主張의 論據
Ⅲ. 眞正名義回復登記請求의 許容與否에 대한 檢討
Ⅳ. 眞正名義回復登記請求訴訟과 旣判力의 抵觸與否
Ⅴ. 結論
[참고문헌]
【ABSTRACT】

키워드

진정명의회복등기 말소등기 중간생략등기 등기의 유효요건 절차법적 권리 공유지분등기 소송물 기판력 저촉 신의칙 Recovery of Authentic Name Erase Registration Effect of Excluding further Litigation Principle of Faith and Trust