[2] The validity of a case where a person with parental authority did not act against a minor and a person with parental authority for performance without a special representative

[3] In a case where: (a) among the land inherited due to the death of the father, the ownership transfer registration for two-seven shares in the name of the minor Gap and Eul was made to Lee Byung, and (b) the ownership transfer registration was made for two-seven shares in each of the two-seven shares in the name of Eul and Eul; and (c) the tax authority imposed a gift tax on Eul and his mother, presumed the above acquisition as a gift to be a gift to Gap; and (b) notified Gap as a joint obligor for gift tax pursuant to Article 4(4)2 of the former Inheritance Tax and Gift Tax Act, the case holding that the judgment below erred in the misapprehension of legal principles as long as the transfer of Gap's shares in the name of two-seven shares is a conflict of interest between the person with parental authority under Article 921(1) of the Civil Act and the person with parental authority under its own name; and

[2] Where a person with parental authority does not act against a minor and his/her performance, such act shall be null and void unless there are special circumstances.

[3] In a case where Party A’s 2/7 shares were acquired under a title trust agreement concluded between Party A and Party B, and the former Act on the Registration of Real Estate under Actual Titleholder’s Name (amended by Act No. 10682 of May 19, 201), and the registration of ownership transfer was again made on the ground of two-seven shares of Party B and Party B, the tax authority presumed the above acquisition to be a donation to Party A, and imposed a gift tax on Party B, but notified Party A of the designation as a joint obligor for gift tax pursuant to Article 4(4)2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916 of January 1, 2010), the case holding that Party B’s 2/7 shares were null and void since Party A’s 2/7 shares were under a title trust agreement with Party B’s legal representative, and thus Party A’s transfer of ownership under the name of Party B and Party B’s 1’s 2/7 shares should be deemed to be null and void.

1. Comprehensively taking account of the evidence adopted, the lower court determined that the Plaintiff’s transfer registration of ownership was lawful on July 26, 200 with respect to the non-party 2’s share 530.5 square meters (hereinafter “the instant share 1”) on the ground that the Plaintiff’s transfer was made on June 4, 200 under the name of the Plaintiff (2/7), the non-party 1 (2/7), and the Plaintiff’s mother 2 (3/7), and that the Plaintiff’s transfer registration of ownership was made on September 27, 202 on the ground that the Plaintiff’s transfer of ownership 4/7 shares in the instant land was made on September 27, 200 to the non-party 2, the Plaintiff’s transfer registration of ownership was made on the ground that it was made on December 24, 2004 by Nonparty 1 and the non-party 2 on the ground that the ownership was transferred on the same date on the ground of the Plaintiff’s share 2/7 shares.

2. However, we cannot agree with the above determination by the court below for the following reasons.

A. Even if a transfer registration of ownership was made on the ground of gift, if the gift, which served as the ground for the registration, is nonexistent or null and void, the transfer of ownership cannot be subject to gift tax regardless of whether or not there exists a judgment ordering the cancellation of the transfer registration (see, e.g., Supreme Court Decision 9Du5962, Aug. 24, 199). In addition, if a person with parental authority does not act against a minor and a person with parental authority without special representative, such act is null and void unless there are special circumstances (see, e.g., Supreme Court Decision 63Da547, Aug. 31, 1964).

B. According to the reasoning of the judgment below and the record, the acquisition of 2/7 of the Plaintiff’s share in the instant land by Nonparty 3 in its name on September 27, 2002 by the Plaintiff’s mother’s legal representative is based on a title trust agreement with the Plaintiff’s legal representative, who is a minor. However, since the registration made pursuant to Article 4(2) of the former Act on the Registration of Real Estate under Actual Titleholder’s Name (amended by Act No. 10682, May 19, 201) is null and void, the registration of ownership transfer as to the Plaintiff’s share in the instant land, which was completed under Nonparty 3’s name on September 27, 2002, is null and void, and therefore, the registration of ownership transfer as to the Plaintiff’s share in 2/7 shares in the instant land is the owner of the instant land.

Meanwhile, on December 24, 2004, with respect to the share 2/7 among the share 4/7 in the instant land in the name of Nonparty 3, the registration of ownership transfer was made on the ground of sale to Nonparty 1 and Nonparty 2. However, Nonparty 1 and Nonparty 2 did not pay the purchase price for each share of the instant land to Nonparty 3, 2/7 shares out of Nonparty 3’s share of the instant land in the name of Nonparty 1, and 2/7 shares out of Nonparty 3’s share of the instant land in the name of Nonparty 3 were transferred to Nonparty 1, and the remainder of Nonparty 2/7 shares were transferred to Nonparty 2 in the name of Nonparty 2.

However, on December 24, 2004, the registration of transfer of ownership by Nonparty 2, who was completed with respect to Nonparty 2/7 of the Plaintiff’s share in the land of this case, was based on the right to claim transfer registration against Nonparty 3 as the legal representative of the Plaintiff for the restoration of the Plaintiff’s real name, and Nonparty 2 can be deemed as having completed the registration of transfer under his name instead of the Plaintiff, the owner.

As above, the legal representative of the plaintiff, who is obligated to transfer 2/7 shares out of the land of this case to the non-party 3 by exercising the right to claim for ownership transfer registration on the ground of the restoration of real name held by the plaintiff against the non-party 3, constitutes the act of transferring the shares in the non-party 2's name to the non-party 2's own name, which constitutes the act of disposing of the minor's property, and thus, it constitutes an act in conflict of interest between the person with parental authority under Article 921 (1) of the Civil Act and the person

Nevertheless, the court below erred in the misapprehension of legal principles as to the establishment and validity of the act of this case committed by a minor's legal representative, which affected the conclusion of the judgment, on the ground that the act of the plaintiff's mother non-party 2 acquired 2/7 shares of the plaintiff among the land in this case is presumed to be a donation under Article 44 (1) of the former Inheritance and Gift Tax Act.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)