가등기에 기한 본등기절차 이행
The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.
The grounds of appeal are examined.
As to the grounds of appeal Nos. 1 and 3
A. In a case where a title trust relationship is established between a person who actually bears the purchase price and a title holder in purchasing real estate after the enforcement of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”), even if that person agreed to transfer the ownership of real estate at the request of the person who actually bears the purchase price, such agreement belongs to the category of the real estate title trust itself or the category of seeking the return of the disposal price, under the premise that a title trust agreement is null and void under the Real Estate Real Name Act
(See Supreme Court Decision 2006Da35117 Decided November 9, 2006, and Supreme Court Decision 2011Da103472 Decided March 14, 2013, etc.). Furthermore, even if the title truster and the title trustee enter into an invalid title trust agreement as above, in order to secure the title truster’s right to claim ownership transfer registration on the premise of such agreement, the title truster and the title trustee entered into a provisional registration under the title truster’s name in the title trust real estate and entered into an agreement to complete the principal registration upon the request of the title truster in the future, such agreement is deemed null and void as it is based on the premise that the title truster’s right to claim ownership transfer registration is null and void under the Real Estate Real Name Act.
(See Supreme Court Decision 2009Da2576, 2583 Decided April 9, 2009). Meanwhile, the title truster had a right to claim the registration of ownership transfer against the title trustee for a legitimate reason separate from the title trust agreement.
Even if a provisional registration is completed in the name of a third party, other than his/her own name, to preserve it, the above provisional registration is completed according to a title trust agreement between the title truster and the third party, and it is not effective due to the invalidity of that agreement.
Supreme Court Decision 201Da1548 Decided December 23, 2010