공유자의 일부가 제기한 무효등기말소청구소송의 성질

One of joint owners can be a plaintiff to apply for cancellation of registration for the co-owned property when the origin invalidity registration happens. This is the present opinion by majority and precedent. According to which theoretical basis they follows, there are three different opinions which are the preservation act theory(A), the analogical application of indivisible claims(B) and the share right theory(C). (A) Some insist this action follows the preservation act theory because the joint owner claims to preserve his/her property. The majority scholars of the Civil Procedure Code judge this action as one of the actions of the third party's responsibility. According to this opinion, the force of the final/irrevocable judgment from the claim by one joint owner can effect to other joint owners who are not the plaintiffs. (B) Some insist this action follows analogical application of indivisible claims because the right to claim for cancellation registration is similar to the indivisible claim so that it is possible to apply this Civil Law, which is each creditor can claim for performance, to this action. (C) Some insist it follows the share right theory because it has to be considered as the essence of each joint owner. According to this opinion, the force of the final/irrevocable judgment from the claim by one joint owner can not effect to other joint owners who are not the plaintiffs. This is similar to the divisible claim so that this is not appropriate to the analogical application of indivisible claims as its basis theory. The judicial precedents of Supreme Court are mostly based on the preservation act theory and the third party's responsibility claim theory side, however, some judgements of Supreme Court are not and some apply the preservation act theory in the extremely narrow range. The writer thinks the share right theory has more validity than the preservation act theory.