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A Study on the Legal Status of Unregistered Real Estate Buyer

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2020, 8(2), pp.271-304
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law
  • Received : April 16, 2020
  • Accepted : May 24, 2020
  • Published : May 31, 2020

PU, DONGHO 1

1대한법무사협회

Candidate

ABSTRACT

The purpose of this study is to review several issues concerning the legal status of ‘Unregistered Real Estate Buyer.’ ‘Unregistered Real Estate Buyer’ is people who bought a specific real estate, but he or she has not still finished registration of it until the time in question. Korean civil law takes formalism about ‘transfer of real rights.’ Therefore ‘Unregistered Real Estate Buyer’ acquires nothing of real rights. Namely he or she has not ownership about purchased estate. But he or she has the possessory rights. Seller can not exercise the revendication against ‘Unregistered Real Estate Buyer.’ ‘Unregistered Real Estate Buyer’ can refuse to return the purchased estate to the seller by the rights based on ‘Exceptio Rei Venditae et Traditae.’ Right to claim Registration is to be regarded claim to credit and is subjected to extinctive prescription. There is a controversy about ‘double sales of real estate’ as one of the issues about ‘Unregistered Real Estate Buyer’ as well. Double sales of real estate means that a seller makes two sale contracts with two independent buyers on the specific real estate. For exemple, ‘A’ sold his or her own real estate to ‘B’. But before the registration, ‘A’ sells it to ‘C’ again and registers that. Double sale contracts hold good legally. In this case first purchaser’s ownership is not acknowledged for a certain real estate. In addition, in case where the second purchaser's active participation in the seller's action, court decision says, the second contract for the sale is invalid as an act against the social order set forth in the article 103 of the Civil Code, thereby protecting the first purchaser's status. But this opinion has a problem to solve the relations between the article 103 of the Civil Code and the article 746 of the Civil Code. In my opinion, It is a reasonable solution that first purchaser can exercise the right of seller’s claim of deletion against second purchaser in lieu of seller and first purchaser can realize the right to claim registration against seller.

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