2重賣買의 법률관계

Juristic Relation in the Second Sale on a Thing

In the second sale on a thing, Korean common views and judical precedents have a large number of problems. This study discourses upon these problems. In the following sentences, the second sale on a thing shall be called the second sale, and juristic act on the real right shall be called juristic act. Ⅰ. The validity of The Second Sale (1) The validity in foreign countries. I discoursed upon theories and judical precedents in Japan, France and German. In these countries, theories and judical precedents do not admit that the second sale in which the second buyer would lend himself positively is invalid, since it is against the social order. (2) The validity in the Republic of Korea The common views and judical precedents in Korea admit that the second sale in which the second buyer lend himself positively is invalid, since it is against the social order. I assert that the second sale is valid in principle, but invalid in some cases. furthermore, I assert that the second buyer is not liable for damages toward the first buyer in principle. Ⅱ. Is the Juristic Act Also Invalid? In case the second sale is invalid, is 'the second sale as the juristic act' also invalid? Firstly, I discourse upon theories and judical precedents in the Republic of Korea and German. And, I assert that the second sale as juristic act' is not invalid by Civil Act article 103. Ⅲ. The Return of Unjust Enrichment? When Performance is paid for the second sale which is against the social order in Civil Act article 103, can the performer demand the return of unjust enrichment? Judical precedent is affirmative for it. then, in the views of theories, majority is affirmative for it, but minority is negative. In my point of view, judging from the attribute of invalidity, it is right what is affirmative for it. therefore, Civil Act article 746 should not be applicable to this second sale.