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KCI우수등재 학술저널

명의신탁자에 의한 가등기와 실체관계의 법리

대법원 2008.12.11. 선고 2008다45187 판결

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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.

Ⅰ. 대상판결의 의의와 문제의 제기

Ⅱ. 실체관계에 관한 법리

Ⅲ. 명의신탁자의 가등기와 실체관계 - 실체관계법리의 대상판결에의 적용

Ⅳ. 결론

참고문헌

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