중간생략등기법리에 대한 재검토

부동산 중간생략등기의 법리와 소유권이전등기청구권을 재검토했다.

The intermediate omission registration law is condensed into three issues under the premise that the Act on Special Measures for Real Estate Registration is regarded as a regulation law. In other words, i) what is the subject of the contract of sale between the intermediary and the final buyer, and how is it implemented? ⅱ) whether the final buyer can claim the ownership transfer register directly with the original seller, iii) whether the registered registration of the final buyer is valid.

First, since the contract of sale in i) is a trade in other rights under the requirements of establishment law under Article 186 of the Civil Code, it is contrary to the requirements of establishment of the Supreme Court to presuppose the intermediary‘s sale as a sale of rights in self. In addition, if the parties expressly agree to claim the transfer of ownership rights of the intermediary, it is the sale of the bonds. In this case, in respect of the opposition, either notice or consent may be used.

Next, in ii), the Supreme Courts attitude to obtain the basis for claiming the transfer of ownership rights in an agreement of intermediate omission is reasonable, but additional requirements such as granting representative rights or third party terms should be added. Finally, the registration registered of the final buyer in iii) is valid, subject to the initial sellers consent to the disposition of the rights holder, whether or not agreed by the three parties, and thus the general effect of registration, including presumptive power, arises. Therefore, the original seller bears the burden of proof that he does not have his or her consent.

Based on the above discussion, the intermediate omission registration legal theory, which the Supreme Court has long formed, should be reviewed.