공유물에 대한 보존행위와 진정명의회복을 위한 소유권이전등기

말소등기의 집행 및 중간 저당권 등의 말소와의 관계 등을 중심으로(대상판결 : 대법원 2005. 9. 29. 선고 2003다40651판결 [소유권이전등기말소])

This article is a review of the decision of the Supreme Court of Korea - on the remedies of shared land owners in case of infringing void registration of ownership title. Registrations of title and its transfer are essential elements of land sale transactions in Korea. A registration, however, does not firmly guarantee legal interest because it is sometimes impeachable. Although there are certain rules to protect bona fide purchasers, the basic rule in Korea is that a registration without lawful transaction or any justifying causes shall be void. The Supreme Court of Korea, in a case of infringing void registration, ruled that ① anyone of shared land owners can file a lawsuit seeking cancelation of the void registration of title; and ② cancelation of a void registration of title is considered the same with the transfer of the registered title to the lawful owner in its legal ground and effect; therefore ③ anyone of shared land owners can file a lawsuit seeking transfer of the registered title to the lawful owner instead of cancelation of the void registration of title. Although the author agrees with the Supreme Court of Korea on the two presuppositions above, he is criticising the conclusion of the decision discussing the legal and economic differences of the two remedies including tax effect, process and legal costs, claim preclusion and other civil procedure issues.