1. Regarding ground of appeal No. 1

A. The judgment of the court below

According to the reasoning of the judgment below, in the plaintiff's subrogation lawsuit against the defendants, the court below acknowledged each of the facts as to the plaintiff's claim for preservation and the damage claim against the non-party 1, co-defendant 1 of the judgment of the court below in light of the evidence of employment. According to the facts, the plaintiff is a trust guarantor who has jointly and severally guaranteed the debt under the credit guarantee agreement of this case against the luminous Housing Finance Credit Guarantee Fund. The above Korea Credit Guarantee Fund subrogated for the non-party 4,467,728,656 won under the credit guarantee agreement on May 19, 199 to the non-party 1, and the above Korea Credit Guarantee Fund has not been liable for the damages claim for the above amount and the due date for the payment of the damage claim against the non-party 1, who is the representative director of the trust, for the non-party 1, who is the non-party 1, as the owner of the luminous Housing, for the purpose of claiming the payment of the above amount as to the non-party 1, as the principal debtor's right to indemnity.

Furthermore, with respect to the existence of subrogation claim against the Defendants in the obligee subrogation lawsuit of this case, the court below comprehensively considered the employment evidence, and determined that the non-party 1 completed the registration of ownership transfer on August 21, 1997 with respect to the non-party 1,695 square meters in his own village, Nam-dong, Incheon, Nam-gu, Incheon, pursuant to a title trust agreement with the co-defendant, the court below completed the registration of ownership transfer under his own name. After this, the above 625-68 square meters in 1,695 square meters in 1,69 square meters in 2 through 4 real estate list at the time of original adjudication, the non-party 1 completed the registration of ownership transfer under his own name and the non-party 1 completed the registration of ownership transfer under his own name on June 18, 1998 (the non-party 2 and the non-party 5's ownership transfer registration of each of the above real estate under his name shall be null and void under his own name.

B. The judgment of this Court

Article 4(1) and the main sentence of Article 4(2) of the Act provides that a title trust agreement and a change in the real right to any real estate made pursuant thereto shall be null and void. However, such invalidation cannot be asserted against a third party (Article 4(3) of the Act). Therefore, a subsequent registration in the name of a third party based on the registration for title trust cannot be deemed null and void immediately, barring any special circumstance, such as where a third party is determined to have actively participated in the trustee’s disposal and thus contravene social order

However, in light of the legislative purport of Article 4(3) of the Act, the term "third party" refers to a person who has a new interest with a title trustee on the basis of being a real right holder (see Supreme Court Decision 2001Da5371, Jun. 26, 2001). On the contrary, a person who entered into a contract with a title truster for the acquisition of a real right to real estate and has only received only the title from the title trustee does not constitute a third party under the above provision of the law. Thus, even if the title trustee asserts that the registration is valid on the basis of its substantive relationship, the person can not assert the validity of his registration made on the ground of a null and void title trust registration under Article 4(3) of the Act.

Therefore, in this case where Defendant 1 himself is the title truster 1 who is not the title truster 1 but the registration under his name was made based on the transaction with the non-party 1 who is the title truster 1, the above defendant is not a third party as referred to in Article 4 (3) of the Act. Thus, the above defendant cannot assert the validity of the registration under his name on the ground of the above provision. On the other hand, the registration under the name of defendant 1, which was made based on the registration under his invalid name, cannot be exempted from being invalid unless there is any assertion or proof as to the circumstances supporting the validity of the registration. Further, the status and relation of the parties recognized by the records, the intention and purpose of the parties who made the registration under the name of the defendants as to the real estate in this case, the circumstance leading to the completion of the registration, the economic conditions and ability of the defendants at the time, the credibility of the evidence alleged that the sale price was received between the parties, and the actual situation of the use of the real estate in this case, and the registration under the name of the defendants 1 to be deemed null and void.

Therefore, although the judgment of the court below is somewhat inappropriate in its reasoning, it is just in the conclusion that the registration in the name of the defendants is null and void, and contrary to the allegations, there are no errors in the misapprehension of legal principles as to the validity of registration.

2. As to the grounds of appeal Nos. 2 and 3

In light of the records, the court below's fact-finding and decision which rejected the defendants' assertion on the grounds that each of the above registrations in the name of the defendants is valid in accordance with the substantive relations should be proved by the defendants, but there is no evidence to prove it, and there is no error of law such as misunderstanding of legal principles as to the burden of proof or misunderstanding

3. Conclusion

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 Cho Cho-Un (Presiding Justice)