부동산 이중매매의 효력 -대법원 2009. 9. 10. 선고, 2009다23283 판결(소유권말소등기)에 대한 비판적 검토- = The Validity of the Double Sale of Real Estate

다국어 초록 (Multilingual Abstract)

When the owner of real estate makes a sales contract with a purchaser, he should complete the registration of transfer of ownership for the purchaser according to the condition of the contract. This means that the seller must not fail to perform his juristic duty for the purchaser. If the seller of real estate who once has made a contract with one purchaser makes the same contract with another purchaser and completes the registration of transfer of ownership for the second purchaser, as occasion calls, the latter contract with the second purchaser is null and void. This is the kind of case which is just related with the problem of the double sale of real estate. In korea, almost all judicial precedents have declared that the second contract in the double sale of real estate may become void in order to protect the first purchaser, if circumstances require. For instance, when the second purchaser incites the owner not to carry out the sales contract of real estate with the first purchaser or participates in the owner`s breach of contract with the first purchaser actively, thus, from the owner, he buys the same real estate for himself with a fraudulent measure, the second purchaser`s contract, that is, the latter contract is null. What is more, the nullity of contract is absolute in it`s nature, so, according to this principle, even the innocent third person who is connected with the continuous transaction of the real estate afterward, can not oppose the first purchaser. This theory is called the principle of nullity of juristic act against social order. And the theory of judicial precedents is based on Article 103 of the Civil Law, thus, by the theory, sometimes the double sale of real estate may be juristic act against social order. Since early time, many scholars have almost the same views as judicial precedents. But now a day, it was revealed there were many problems in the common views and judicial precedents, First of all, the principle interferes the transaction safety of real estate seriously, Therefore some scholars assert different views from common views about the double sale of real estate to protect the innocent third person, but it is not enough to solve the problems mentioned above. This study discourses upon the basic solution of the problems to keep the safe of transaction of the real estate. In conclusion, I`d like to say the following things; always the double sale of real estate is not juristic act against social order, and is not under Article 103 of the Civil Law, the double sale of real estate is not occasionally invalid but always valid, therefore, now such a doctrine as the judicial precedents ought to be abolished.

참고문헌 (Reference)

1 이현석, "不動産 二重賣買에 관한 立法論的 考察 - A Legislative Study on the Double Sale of Real Estate -" 한국재산법학회 27 (27): 429-450, 2010

2 강태성, "이중매매의 법률관계" 한국재산법학회 22 (22): 1-32, 2005

3 송덕수, "신민법강의" 박영사 2008

4 주지홍, "부동산이중매매에 있어서 배임죄 적용 결과 민사법질서에 미치는 부정적 영향" 법학연구소 51 (51): 319-347, 2010

5 황경웅, "부동산 이중양도의 반사회성에 대한 판단 기준" 법학연구원 34 (34): 95-118, 2010

6 김증한, "부동산 이중매매의 반사회성" 한국법학원 10 (10): 1972

7 박영규, "부동산 이중매매에 관한 이론 비판" 서울시립대학교 법률행정연구소 8 : 2001

8 김상현, "반사회적 부동산이중양도에서 전득자의 보호" 건국대학교 법학연구소 (4) : 2009

9 김준호, "반사회적 부동산이중매매에 관한 판례이론" 고시계사 35 (35): 1990

10 윤진수, "반사회적 부동산 이중양도에 있어서 전득자의 지위" 법조협회 1998

11 김형배, "민법학강의" 신조사 2008

12 곽윤직, "민법총칙" 박영사 2002

13 손종학, "민법강의." 충남대학교출판부 2007

14 김준호, "민법강의" 법문사 2009

15 지원림, "계약 및 법률행위법 개정의 방향과 내용－민법개정위원회 제1,2기 제1분과위원회의 결과보고" 한국민사법학회 2011