채무자 소유 아닌 부동산 경매와 담보책임과의 관계

• 영문명: The relation between the auction about the real estate which debtor doesn t have ownership and the responsibility about security of seller
• 발행기관: 한국민사법학회
• 저자명: 오시영(Oh, See Young)
• 간행물 정보: 『민사법학』제42호, 317~363쪽, 전체 47쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2008.09.30

영문 초록

Since the auction of other s right is originally null, it is said that the judicial decision of an object can t inquire the responsibility about security of seller according to the article 578 of civil law but can only demand the repayment of wrongful profit to debtor or creditor. The article 570 of civil law recognizes the responsibility about security of seller in the case of the article 569 of civil law, and the article 578 of one accepts it as well in the article 570 of one. Then buyer won t be able to require the responsibility about security of seller for the reason that the auction of other s right is originally null, but it is right that buyer ask seller of the responsibility about security of seller because the auction of other s right is a sort of valid sales contract. Auction being null, buyer cancels it. And first he asks creditor or guarantor of the security of the responsible about security of seller. After that he will be able to ask it of the creditor who shared the money that the buyer paid. It is natural that the responsibility about security of seller is accepted because it would be better for buyer to ask seller of the responsibility about security of seller than about the repayment of wrongful profit of one considering the buyer is more profitable in the scope of repayment and effect of law. I think it is proper that the rightful person who hasn t had the lawsuit of the third person s demurrer is deprived of the substantial right by means of the restraint of effective right after closing auction, because the lawsuit of the third person s demurrer is secured by the law of execution of civil affairs. As a result, it is good that the rightful person who lose his substantial right is recompensed wrongful profit from the creditor or the debtor who get money through auction. Therefore, I propose that the judicial decision of an object be changed because it is wrong.

목차

Ⅰ. 대상판결(대법원 2004. 6. 24. 선고 2003다59259 판결)

Ⅱ. 대상판결에 대한 검토

Ⅲ. 결론

참고문헌

키워드

타인의 권리의 경매 매도인의 담보책임 부당이득반환 제3자이의의 소 원시적 불능 the auction of other s right the responsibility about security of seller the repayment of wrongful profit the lawsuit of the third person s demurrer originally null