所有權移轉登記抹消請求와 正名義 回復을 위한 移轉登記請求

Title
所有權移轉登記抹消請求와 正名義 回復을 위한 移轉登記請求
Authors
임성권
Keywords
법학연구, 소유이전, 등기, 말소청구
Issue Date
2003
Publisher
인하대학교 법학연구소
Series/Report no.
법학연구제6집125-146 pp.
Abstract
In a case of where a lawsuit claiming cancel the registration
for transfer of real right ownership has been already instituted
and then the same plaintiff institute another lawsuit claiming
transfer the registration of real right ownership in order to
recover ture name, how the court judge the latter lawsuit?

Plaintiff make pleadings on the matters of the letter lawsuit
aboud he or she is the true owner and the registration of
defendant's name is null. Thats are same pleadings on the
former lawsuit. In the defendant's position, he or she must
make twice appearance on the same matters by compulsion. Its
violate the Fairness Doctrine, a kind of the ideal of civil
procedure, so it's blameworthy.

A lawsuit claiming cancel the registration for transfer of real
right ownership and a lawsuit slaiming transfer the registration
of real right ownership in order to recover true name has
different subject matters. So it is necessary to prohibit
institution of the latter lawsuit to avoid above blaming.

Korean Supreme Court prohibit the institution of lawsuit like
this case base on the Faith and Sincerity Doctrine. But I think
its not good because if we solve the legal problems base on
the General Principles, its often intimidate legal stabilization.

There is a legal opinion to solve this problem that the court
dismissal the latter lawsuit cause plaintiff is not a true name of
registration without any special reason, base on the probative
value of final and conclusive judgement of the former lawsuit
which denied plaintiff's right of claim to cancel the registration
for transfer. I agree this opinion because it is natural that the
right of claim to transfer the registration of real right
ownership in order to recover true name is very exceptional
right so it is permitted with limit.
If one of both lawsuit, a lawsuit claiming cancel the registration
for transfer of real right ownership in order to
recover true name, on the same object and on the same factual
grounds, has been conclusively judged early, this judgement
shall apply mustatis mutandis to final judge of the other lawsuit.
URI
http://dspace.inha.ac.kr/handle/10505/611
Appears in Collections:
연구기관 > 법학연구소 > 법학연구(法學硏究)
Files in This Item:
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