[2] The meaning of "litigation as to real right to real estate" under Article 11 (4) of the Act on the Registration of Real Estate under Actual Titleholder's Name

[3] Whether a provisional disposition constitutes "litigation as to a real right to real estate" under Article 11 (4) of the Act on the Registration of Real Estate under Actual Titleholder's Name (negative)

[2] The "litigation as to the real right to real estate" under Article 11 (4) of the Act on the Registration of Real Estate under Actual Titleholder's Name is sufficient if the title truster asserts that he is the person having the actual right to the pertinent real estate and is a litigation to have it confirmed officially. Thus, the above litigation shall include not only the case where the title truster directly files a lawsuit in accordance with the existing title trust agreement, but also the case where the title truster is denied the title trust relationship. As a result, it is not limited to the litigation to be immediately allowed to carry out the real name registration, but at least, it shall be interpreted that the title truster shall not be allowed to carry out the real name registration until the legal relationship subject to the dispute becomes final

[3] A provisional disposition is an order to preserve the right to claim for registration, etc. even if it is necessary to take place on the pertinent real estate, and it cannot be deemed a procedure to obtain public confirmation of the right of the person having the right to claim for registration. Therefore, such provisional disposition cannot be deemed as a procedure to obtain public confirmation of the right of the person having the right to claim for registration. Thus, unless the principal lawsuit is brought before the enforcement of the Act on the Registration of Real Estate under Actual Titleholder's Name or during the grace period, a title trust agreement becomes null and void and thus a claim for

According to the provisions of Articles 11, 12(1) and 4 of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Act”), a title truster, who had any real right to real estate registered under the name of a title trustee prior to the enforcement of the Act, under the title trust agreement prior to the enforcement of the Act, shall make a real name registration, etc. within the grace period prescribed in Article 11 of the Act. Since a title truster becomes null and void due to a title trust agreement and any change in real rights to real estate made pursuant to the registration made pursuant to the title trust agreement after the expiration of the grace period, the title truster cannot file a claim for the registration of ownership transfer due to the termination

Meanwhile, according to Article 11(4) of the Act as pointed out by the appellant, in cases where litigation as to the real right to real estate is instituted before the enforcement of the Act or during the grace period, the grace period is extended within one year from the date on which a final and conclusive judgment, etc. on the lawsuit is rendered. In addition, the term "litigation as to the real right to real estate" as mentioned above is sufficient if the title truster asserts that he/she is a party to the relevant real estate and is an action for public confirmation (see Supreme Court Decision 98Da30827, Nov. 10, 1998). Accordingly, the above litigation includes not only cases where the title truster directly files a lawsuit in accordance with the existing title trust agreement, but also cases where the title truster is dissatisfied with the title trust relation and thus, the title truster is not required to obtain a provisional disposition for the purpose of preserving the right to real estate as a result of a lawsuit seeking provisional disposition, even if it is not required to obtain a right to the real estate registration without permission until the dispute becomes final and conclusive.

The judgment of the court below to the same purport is just, and there are no errors in the misapprehension of legal principles as to Article 11 (4) of the Act. Thus, the ground of appeal on this part is without merit.

The court below held that the land Nos. 1 through 6 of this case was a title trust with Defendant 1, not Nonparty 1 but Nonparty 2. It is an additional judgment, and it does not affect the conclusion of the judgment even if there is any error as otherwise alleged in the ground of appeal. Therefore, the above assertion is without merit.

Therefore, the appeal is dismissed and all 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 Seo Sung-sung (Presiding Justice)