수인의 채권자 공동명의로 된 매매예약완결권의 가등기에 기한 본등기청구의 방법 - 대법원 2012.2.16. 선고 2010다82530 전원합의체 판결을 중심으로 -

• 영문명: Main registration request based on provisional registration of completion of a reservation sales rights in multiple creditors name - Supreme Court Decision 2010DA32530 Delivered on February 16, 2012 -
• 발행기관: 충북대학교 법학연구소
• 저자명: 이재목(Lee Jae Mok)
• 간행물 정보: 『법학연구』第27卷 第1號, 23~47쪽, 전체 25쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2016.06.30

영문 초록

In case that multiple creditors respectively practiced sales reservation and finished provisional registration (so called completion of a reservation sales rights as a joint name) to secure their claims. Belonging types of the completion right and forms of the original registration petition lawsuit have been problems. Of course these problems are happen when persons directly involved do not clearly determine a practice method in the completion of a reservation sales rights(lets' call this CRSR following sentences). According to precedents by traditional supreme court for these matters, "when there are multiple creditors for one debtor, the debtor and multiple creditors make a contract to secure theirs claims as multiple creditors to be joint holders of right for the debtor's real estate. therefore they practice a provisional registration to preserve claim of the ownership transfer registration, they(multiple creditors) have relation with quasimiteigentum CRSR among themselves. Owing to practicing CRSR and following this lawsuit asking for transferring of ownership registration are all acts of disposal of CRSR, expression willing to practice CRSR must be jointly practiced by all multiple creditors. AS a lawsuit asking for fulfilling a original registration of the ownership to be transferred for sales reservation completed sales object is necessary co-litigation, so all multiple creditors joining CRSR as Quasimiteigentum must filed a lawsuit jointly. This paper is written to re-look the meaning of following handled decision in a new viewpoint and make a difference with the past precedents more clearly. This precedent hold that in case that multiple creditors got CRSR by sales reservation, they are relative in Quasimiteigentum for the object. And this precedent changed traditional decisions having connected a expression of will of CRSR with petition asking for original registration action of disposal and necessary joint litigation within a limited condition. This means it accept a few consistent critical theories. In this verdict, Whether multiple creditors have jointly CRSR or each creditor has respective independent CRSR according to their share(or quota) depends on contents of the sales reservation. When these contents are not proposedly determined in a sales reservation, Motive and details of multiple creditors jointly contracting a sales reservation, security' purpose to achieve by the sales reservation, whether their will to wield security related rights is or not, whether each creditor express concrete right of quota or not, whether quota ratio coincide with secured claim ratio or not, whether custom establishing provisionally registered security right is or not, as so on are to be considered synthetically in adjudging it. In particular, this decision admitted each creditor' respective independent exercise of a right, focusing on his(each creditor's) 'whether expression of right quota and the ratio coincide with secured claim or not'. In considering the necessity of respect of principle of private autonomy, change of registration execution, mitigation of excessive restriction of creditor' right to foreclose for his quota sort of things. This uttered decision has to be largely reviewed when consider this beefing up the function of sales reservation' security for a claim, enable it to satisfy request of the common practices of transaction.

목차

Ⅰ. 머리말

Ⅱ. 대상판결의 사실관계 및 소송의 경과

Ⅲ. 대상판결의 연구

Ⅳ. 맺음말

참고문헌

Abstract

키워드

매매예약 채권담보 가등기 본등기 공동소송 sales reservation claim security provisional registration main registration co-litigation