不動産二重讓渡의 反社會性 判斷基準에 關한 硏究

• 영문명: The Study on the Standard of Judgment of the Antisocial Nature of the Duplication Transfer of Real Estate
• 발행기관: 한국부동산학회
• 저자명: 金尙泫(Kim Sang Hyun)
• 간행물 정보: 『부동산학보』不動産學報 第34輯, 182~196쪽, 전체 15쪽
• 주제분류: 경제경영 > 경영학
• 파일형태: PDF
• 발행일자: 2008.08.01

영문 초록

  1. CONTENTS
  (1) RESEARCH OBJECTIVES
  In the duplication transfer of real estate, when the 2nd grantee positively participates in an act in violation of the transferee´s duty, the judicial precedent cites it´s an absolute nullity as an antisocial action in the article 103 of the Civil Law. That theory of the judicial precedent intends to restoring the order of the business of the real estate. But the good faith person, who acquires the right above all can be protected by the theory of the absolute nullity of that judicial precedent. Therefor there are lots of discussions that is to deny the antisocial nature of the duplication transfer of real estate and to substitute it for the theory of the covin act or the unlawful act.
  (2) RESEARCH METHOD
  We choose literature research methods through various kinds of material domestic books and theses.
  (3) RESEARCH FINDINGS
  The judgement time of the antisocial nature of the duplication transfer is that there should be a objective fact, the first grantee paid in full to the transferee then got the possession, possessed and used as the actual possessor. In addition, we should check the considerate factor which is formed by the judicial precedent until now.
  Also, we should think over whether the first grantee could know that there was the system of the provisional registration and disposition or not. And we should deliberate the interval of time between when the transferee delivered the right to the first grantee and the second grantee received the registration.
  2. RESULTS
  The obscurity of a positive conspiracy of an act in violation of transferee´s duty is suggested by the economic structure of the capitalism, the human nature of pursuing the interest, general law principle of the contract liberty, the accepted theory and the judicial precedent. According to it, there is wonder that the duplication transfer of real estate under that positive conspiracy is treated as a nullity indiscriminately. If the offense of the virtuous public morals and many other public order is vacated under the article 103 of the Civil Law means that legal action! s effect is approved, it will bring the result against the spirit of the law. In that sense, the article of the Civil Law is the minimum moral norm which sways the effect among the individuals.
  By the way, in the duplication transfer of real estate it! s the general state that the 2nd grantee, who´s known the existence of the release between the 1st grantee and the transferee, lures, instigates, requests, prevails, solicits, urges, or deceives for achieving the contract with the transferee. And those should be allowed for the pursuit of the personal profit in the economic structure of the capitalism. Hence it is necessary to concretely confirm the standard of the obscurity of a positive conspiracy which is used the decision of invalidity of the duplication transfer of real estate. Under that judgement, we should consider sufficiently the principle of pursuing party interest in the general law principle of the contract liberty and the business practice of the capitalism. And we should analysis the form of the party! s action to be decide to nullity very restrictively.
  In all those sense, the judgement time of the antisocial nature of the duplication transfer is that there should be a objective fact, the first grantee paid in full to the transferee then got the possession, possessed and used as the actual possessor. In addition, we should check the considerate factor which is formed by the judicial precedent until now. Also, we should think over whether the first grantee could know that there was the system of the provisional registration and disposition or not. And we should deliberate the interval of time between when the transferee delivered the right to the first grante

목차

ABSTRACT
Ⅰ. 序論
Ⅱ. 反社會性 認定與否의 關한 論議와 檢討
Ⅲ. 反社會性 判斷의 時期
Ⅳ. 反社會性 判斷의 考慮要素
Ⅴ. 結論
參考文獻

키워드

duplication transfer of real estate antisocial action absolute nullity good faith person who acquires the right above all the standard of judgment of the antisocial nature