부동산 잔금 지급 후 소유권 이전 등기를 하지 않은 매수인의 법적 지위

Abstract

The legal status of the buyer has not paid the balance due prior to registration of ownership of real estate after

Gi Ju Yang

Department of Law, The Graduate School,

Pukyong National University

Abstract

In real right fluctuation by juristic act, there are necessary requirements to be fulfilled. Over an immovable, an agreement on a real right and registration (Civil Act Article 186) and over a movable, an agreement on a real right and delivery should take place (Civil Act Article 188) in order for real right fluctuation to be effective. In Germany, regarding real estate ownership transfer, there shall be an obligation act and a real right act with additional formality, thereby recognizing necessity of real right contract. In this sense, act of real right is an agreement on change of real right to bring about real estate real right fluctuation with necessary obligation act and separate form. For real right fluctuation in Germany, obligation act, real right act, and registration are all needed. However, in case of Korea where an expressive provision does not exist, there is no need for real right act. Despite these requirements during real estate transaction process where the purchaser pays the balance and possesses every document on ownership transfer registration, in reality, some cases occur in which the purchaser does not transfer registration of ownership under actual title and just take delivery of an immovable from the vendor and then uses and benefits from it. Taking a closer look at real estate purchase and sale process, first, people concerned with juridical relations of real estate shall agree on the purchase and sale agreement of the real estate, secondly draw up a contract, and then on the payment date of a remaining balance, the purchaser shall pay the price of purchase and sale, and this is when finally the vendor and the purchaser are under the relation of concurrent condition (Civil Act 536). With this and the payment, the entire document required for registration is handed over to the purchaser. Also, the current Article 186 of the Civil Act adopted legal formalism by providing, “The acquisition, loss of, or any alteration in, a real right by a juristic act over an immovable takes effect upon its registration.” Therefore, even if purchaser is in use of and benefiting from real estate, which is the object of purchase and sale, without ownership transfer registration, the purchaser cannot obtain ownership. Regarding this, legal protection of real estate purchaser who has not processed the ownership transfer registration of the object real estate becomes problematic, but the current Civil Act does not state this matter.