[토지소유권이전등기말소등][공1996.12.1.(23),3430]
Where double selling of real estate constitutes an anti-social juristic act and becomes null and void, the validity of registration of transfer of ownership in the name of a subsequent purchaser in good faith based thereon (negative)
In a case where the double selling of real estate constitutes an anti-social legal act, the double selling contract is absolutely null and void. Thus, even if the third party, who acquired the real estate again from the second buyer, believed that the second buyer acquired the ownership of the real estate in question effectively, the double selling contract cannot be asserted as valid.
Articles 103 and 186 of the Civil Act
Supreme Court Decision 79Da942 Decided July 24, 1979 (Gong1979, 12150) Supreme Court Decision 82Meu672 Decided June 12, 1984 (Gong1984, 1266) (Gong1266) Decided November 26, 1985 (Gong1986, 124)
Jeonju City
Defendant 1 and 11 others (Attorney Song Man-chul, Counsel for the defendant-appellant)
Supreme Court Decision 94Da28307 Delivered on May 26, 1995
Gwangju High Court Decision 95Na3984 delivered on June 13, 1996
All appeals are dismissed. The costs of appeal are assessed against the Defendants.
We examine the grounds of appeal.
According to the reasoning of the judgment below, the court below acknowledged the facts as stated in the judgment of the court below. Defendant 1 sold the land of this case to the plaintiff before his birth and sold it twice to the defendant 2 with the knowledge that it was incorporated into "No. No. 2", barring any special circumstance, it constitutes a double selling of real estate, which constitutes an act of breach of trust in relation to the plaintiff, and Defendant 2 is deemed to have actively participated in the seller's breach of trust by requesting the sale of the above land to the defendant 1 in order to obtain gains profits from the resale, even though he knows that the land of this case was incorporated into "No. 2" managed by the plaintiff as a maintenance of the land of this case. Thus, the above sales contract between Defendant 1 and Defendant 2 is null and void as an anti-social act. Accordingly, the registration of transfer of ownership between the defendant 1 and Defendant 2 is null and void, and the remaining defendants' ownership transfer registration and establishment registration of mortgage are also null and void. In light of the relevant records and evidence, the judgment of the court below is justified and there are no errors.
In a case where the second purchaser of a real estate actively takes part in the seller's act of breach of trust and the second sale contract constitutes an anti-social legal act, the second sale contract is absolutely null and void. Thus, even if the third party who again acquired the real estate from the second purchaser believed that the second purchaser acquired the ownership of the real estate, the second sale contract cannot be asserted as valid (see, e.g., Supreme Court Decisions 79Da942, Jul. 24, 1979; 82Meu672, Jun. 12, 1984; 85Meu1580, Nov. 26, 1985).
The issue is that if the double transfer of real estate constitutes an anti-social legal act and thus becomes null and void, it shall not be deemed null and void against a bona fide third party, such as the case of false representation in terms of the principle of good faith or the principle of good faith. However, this shall not be employed as an independent opinion.
Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Yong-hun (Presiding Justice)