명의신탁자에 의한 가등기와 실체관계의 법리

• 영문명: Temporary Title Registration under a Third Party s Name and Substantial Relation
• 발행기관: 한국민사법학회
• 저자명: 김병두(Kim Byungdu)
• 간행물 정보: 『민사법학』제58호, 193~235쪽, 전체 43쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2012.03.31

영문 초록

Variation of real right in formalism of current civil law is the force of law made by action of real right and its registration, so the registration consistent with action of real right is logical. However, Supreme Court develops a legal principle of registration consistent with ‘substantial relation which requires that real estate registration should be consistent with ‘substantial relation even under current civil law to apply principle of requirement for establishment. Precedents in the indifference of academic circle to it firmly establish principle of substantial relation. In particular, the judgements of substitute compensation more actively assess ‘registration consistent with substantial relation in the field of title registration under a third party s name. This judgement of substitute compensation is noticeable in that it acknowledges authority to dispose by a title truster other than by a person registered for real estate, and the transaction based on it is effective and in that substantial relation itself is actually transferred under provisional registration, and the person to take over right under provisional registration can make principle registration. However, the legal principle of substantial relation has an aspect that it works as principle of real right variation in Korea, which is different in Japan which voluntarism is applied. The position of court which seems to be parallel to the academic circle to support real right law system of German legal system cannot be overlooked, considering the reality that ten thousands of judgements are related to it including lower court trials. Nevertheless, there are few precedent studies on substantial relation, so many expressions seemed to misunderstand the legal principle of precedents about substantial relation in the specific cases. More thorough analysis of the legal principle of substantial relation and reconsideration based on it are needed. And, the judgements of substitute compensation ruled that the consistency of provisional registration with substantial relation was acknowledged for transaction safety, but this approach should restrictedly be applied since it possibly contradicts judicial doctrine of interim omission registration.

목차

Ⅰ. 대상판결의 의의와 문제의 제기

Ⅱ. 실체관계에 관한 법리

Ⅲ. 명의신탁자의 가등기와 실체관계 - 실체관계법리의 대상판결에의 적용

Ⅳ. 결론

참고문헌

키워드

실체관계 실체관계에 부합하는 등기 물권변동론 명의신탁 가등기 substantial relation registration consistent with substantial relation transfer of property title registration under a third party s name temporary registration