공동명의로 담보가등기한 복수의 채권자사이의 법률관계 -대법원 2012.2.16. 선고 2010다82530 전원합의체판결을 중심으로-

The Supreme Court this time changed its existing stance that multiple creditors were in the relationship that had quasi-joint ownership of the rights of completion of sales reservation, and therefore the lawsuit for the expression of the rights of sales reservation completions on debtors and their principal registration of transfer of ownership shall be exerted by all creditors as a necessary co-litigation in the juristic relation when in order to secure the credits of multiple creditors for a debtor, the plural creditors made a contract of the sales reservation in which the multiple creditors were joint holders of the property owned by the debtor and completed provisional registration for preserving claim of registration of ownership transfer. In other words, in the above case, whether several creditors had relations that have joint rights to complete the sales reservation or they had independent rights to complete sales reservation separately for each share should conform to the contents of the sales reservation, and when those particulars were not proposedly determined in the sales reservation, those creditors must decide by considering the motivation and details how they jointly made contract of the sales reservation, the purpose of the security achieved by the sales reservation, whether or not there was the intention to jointly exert the rights related with the security, whether or not there was the indication of specific right of quota for each creditor as well as there was coincidence of the proportion of the right of quota and the one for the secured debt and practice of settlement of the right of provisional registration security overall; after that, when the several creditors who had completed the joint provisional registration security had the separate and independent rights to complete sales reservation regarding their shares, after one of the creditors solely implemented liquidation procedures regulated in the Provisional Registration Security Act about his or her share, he or she would be able to claim for the execution procedure for the principal registration of transfer of ownership. In the meantime, about the opinion of the Supreme Court above, the rights to complete sales reservation were the subject of the quasi-joint ownership or not and as a exercise method it should be conducted by a necessary joint litigation (it was called necessary co-litigation at the time of the former Act) which must be exerted jointly received fierce criticism from the judicial circles; after 28 years of the first Supreme Court decision that treated the ways to claim the principal registration based on the provisional registration jointly owned my many creditors, the Supreme Court accepted the criticisms of that time as follows and changed its position in the meantime through grand bench decision. There is repenting of their missing a chance, but the ruling is so much welcome. As examined in this paper, even if we follow the mainstream attitude of the Supreme Court towards the joint ownership litigation, that one of the creditors makes a claim of the principal registration based on his or her share is after all exercising his or her right of share, so it can be naturally said that the registration should be done by the creditors separately.