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KCI등재 학술저널

확정판결에 기한 부동산이중매매와 진정명의회복을 원인으로 한 소유권이전등기소송

대법원 2002. 4. 26. 선고 2001다8097,8103 판결

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In this article, writer provides new models that the judgment to the dual contract of real estates and Res Judicata. The views of the majority and precedents hold the dual contracts are null and void if the dual contracts contravenes good morals and other social order. In case if dual contracts of real estates by an act in violation of one’s duty of the seconds buyer, These contracts are null and void, because it is contravenes good moral and other social order. Therefore, the dual contracts becomes Performance for Illegal cause, because it is a person grants property or renders service for an illegal cause he may not demand the return of benefits resulting therefrom. In addition, the views of majority and precedents were adopted the comparative method of unlawfulness and the seller is a better unlawfulness than the second contracts buys. According to the majority theory and prece-dents, the first contract becomes impossible to perform if the owner transfer. The Supreme Court of Korea has decided that dual contracts of real estates are null by an act in violation of one’s duty of the seconds buyer. If this is the case, The first buyer can do recovery the right of ownership of real estate through Obligee`s Right of Subrogation to the Obligor. An obligee may, in order to protect his claim, exercise the rights belonging to the obligor. But, the seconds buys receive final decision for the registration of a transfer, his claim acquire Res Judicata. As a result, seconds buys won the ownership of the real estate, it is not morally correct. In other words, a final decision for the registration of a transfer cut off latter legal proceedings by the object of a lawsuit of the same. I insist that this can be solved by lawsuit claiming performance for registration demand for recovery of real name. The Supreme Court of Korea precedents in 2001 changed the decision of 1990 by ruling that the registration cancellation demand for reason invalid-ation and the registration demand of ownership transfer for recovery of real name have substantially same objects of the lawsuit. This decision make powerlessness that to protect dual contracts of real estates by an act in violation of one’s duty of the seconds buyer.

Ⅰ. 사실관계와 사건의 경과

Ⅱ. 문제의 소재

Ⅲ. 부동산이중매매의 법리

Ⅳ. 확정판결에 기한 부동산 이중매매에서 진정명의회복을 원인으로 한 소유권이전등기소송

Ⅴ. 결론

참고문헌

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