2. The defendant shall pay to the plaintiff 285 million won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of full payment.

3. All costs of the lawsuit shall be borne by the defendant.

4. Paragraph 2 can be provisionally executed.

[Ground of recognition] Facts without dispute, entry of Gap 1, 3, 6, and 7 evidence, the purport of the whole pleadings

A. Formation of preserved claims

1) On May 10, 2006, KimA sold at KRW 182,00,000,000,000,000,000 from Sungnam-si, Sungnam-si, 00 BB VillageCC apartment, and on May 29, 2006, in total, KRW 187 EE apartment 00,000,000,000,000, and the related transfer income tax was reported, but did not pay it.

2) On July 2, 2007, the director of the tax office under the Plaintiff-affiliated Tax Office notified the KimA of the payment deadline on September 17, 2007 to pay the total amount of KRW 277,101,930 ( KRW 115,206,482 + KRW 161,895,454 + KRW 10 according to the Management of the National Funds Act; KRW 3,000,810 ( KRW 1,247,604 + + KRW 1,753,212) and resident tax.

3) The KimA did not pay the said taxes even thereafter, and on April 2, 2009, the transfer income tax borne by KimA as of April 2, 2009 reaches KRW 345,268,760, including additional charges.

B. Conclusion of a sales contract and transfer registration under the name of the defendant

On March 28, 2006, the Defendant entered into a sales contract with the YGF to purchase HG apartment H apartment Y apartment 1121, 100,000, 375,000,000 (hereinafter referred to as the “instant apartment”) from the YGF from the YF on March 28, 2006, and completed the registration of ownership transfer in the name of the Defendant with respect to the instant apartment on May 8, 2006.

(c) Insolvent of KimA;

The KimA is in a state of exceeding the obligation of positive property exceeding the negative property as of the closing date of the pleadings in the trial.

2. Determination

A. Summary of the parties' arguments

The plaintiff asserts that the plaintiff is obligated to return unjust enrichment equivalent to the purchase price to the plaintiff who subrogated KimA, because "the defendant concludes a contract title trust agreement with Kim F, who was unaware of the above nominal deposit agreement, entered into the instant contract with Kim F and completed the registration of ownership transfer in the future."

In regard to this, the defendant's assertion that "the apartment of this case was purchased by the defendant, and the purchase fund of KRW 375 million and KRW 285 million out of the purchase fund of KRW 10 million for certified judicial scrivener," but among them, the amount of KRW 145 million was received as the deposit for the lease of the apartment of this case as the repayment for the previous loan, and the amount of KRW 85 million was received as the deposit for the lease of the apartment of this case, and the remaining amount of KRW 60 million was borrowed, and the apartment of this case was loaned as the collateral.

B. Whether the Defendant acquired the instant apartment in accordance with the contract title trust agreement

1) Facts of recognition

The following facts may be acknowledged according to the overall purport of Gap 2, 4, 5, 9, and Gap 8-2 and 3-3.

A) The Defendant is a woman of KimA, his mother, Kim II.

B) On April 20, 2006, Kim Jong-A requested the Dong-in KimJ to open a deposit account (0000) in the name of the national bank under the name of his spouse, KimK. On April 20, 2006, he deposited KRW 200 million from his national bank deposit account (000) to the above deposit account in the name of KimK, but again, he deposited KRW 200 million from the above deposit account in the name of his defendant KimK to the agricultural bank (000) in the name of his spouse.

C) From the national bank account in the name of KimA to May 8, 2006, the sum of KRW 75 million deposited as a cashier’s checks was paid to KimL, who was a lessee of the apartment of this case at the time. On the same day, KRW 10 million, which was deposited by cashier’s checks, was paid to a certified judicial scrivener who vicariously performed the registration procedure for transfer of ownership of the apartment of this case.

D) The Defendant and the Defendant’s parents still reside in the previous domicile even after the instant sales contract was concluded, and the KimM and KimN, a child of Kim A, were occupied in the instant apartment from June 26, 2006, immediately after the said transfer registration of ownership was completed, and have been residing until now.

E) The defendant asserts that "the defendant leased the apartment of this case to KimA in KRW 80 million, and his children are residing in the apartment of this case," and that "the defendant and his mother, from May 27, 2004 to June 21, 2005, lent a total of KRW 1195 million to KimA five times, and he received KRW 145 million as a repayment of the principal and interest on the loan from KimA, and that the KimA also submitted as evidence for the above lending, a loan certificate and each letter (No. 1 to 3, No. 4-1, 2, and No. 5-1, 5-1, 3) prepared in the future of Kim II (No. 1 to 3, No. 4-1, 2, 5-1, 5-3).

F) On the first day for pleading in the trial of the first instance, the Defendant urged the Defendant to explain and prove “whether it is possible to submit any objective evidence, such as financial data on the loan of the Defendant’s assertion, whether a lease contract was concluded with KimA as alleged by the Defendant, or whether it obtained a fixed date in the lease contract.” However, on the second day for pleading in the trial of the first instance, the Defendant responded to the fact that there was no evidence to submit or prove the registered matters, and the pleading was concluded.

G) Meanwhile, the Defendant was 25 years of age at the time of the instant sales contract, and the sum of the earned income accrued from 1998 to 2005 was 35,44,000 won, and the Defendant’s mother’s income was not submitted.

H) There is no evidence suggesting that the KimF, which concluded a sales contract with the Defendant on the instant apartment, was aware of the relationship between the Defendant and KimA, or the source of the sales price.

(i) The Defendant asserted that KimA soldCC apartment and EE apartment due to economic lack, and without any condition, did not explain to the Defendant whether there was a special reason for further lending of KRW 6.0 million to the Defendant.

2) Determination

In full view of the following circumstances: (a) the relationship between the Defendant and KimA; (b) the origin and payment process of the purchase price of the instant apartment; (c) the residential relationship between the Defendant and his mother; (d) the degree of consistency and credibility of the Defendant’s assertion on the source of the purchase price; and (e) various circumstances revealed in the pleadings, the Defendant entered into a contract title trust agreement with the seller under his own name; (c) in the internal relationship with KimA, KimA entered into a contract title trust agreement with the seller to exercise the authority as the owner of the instant apartment; and (d) entered into a contract with the KimF who was unaware of the fact that he was a party to the contract and was a title trust agreement; and (e) confirmed the existence of the Plaintiff’s assertion that the Plaintiff completed the registration of ownership transfer under the name of the Defendant; and (e) the statement of No. 6 and the testimony of Kim Witness of the first instance trial on the source of the purchase price; and (e) the statement of No. 7-1 through No. 3 are insufficient for each of the above recognition.

C. Return of unjust enrichment

In light of the above circumstances, although the above title trust agreement between KimA and the defendant is null and void pursuant to Article 4(1) and (2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, the defendant, who is the title trustee, acquired the complete ownership of the apartment of this case, and KimA could not acquire the ownership of the pertinent real estate from the beginning of the year, and thus, the defendant unjustly obtained the purchase fund received from KimA (see, e.g., Supreme Court Decision 2002Da66922, Jan. 28, 2005).

Therefore, the Defendant is obligated to return to KimA the amount of KRW 285 million for purchase of apartment housing ( KRW 200 million deposited by the Defendant’s deposit transfer + KRW 75 million for lease deposit paid to the previous lessee + KRW 10 million for certified judicial scrivener + the amount of unjust enrichment equivalent to the delay damages.

D. Sub-committee

Therefore, the defendant is obligated to pay to the plaintiff who exercises the above claim for return of unjust enrichment on behalf of KimA for the preservation of the tax claim of this case against the insolvent KimA, and to pay damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from the day after the judgment of this case is finalized to the day of complete payment, which the plaintiff seeks.

3. Conclusion

The plaintiff's claim is reasonable, and the judgment of the court of first instance, which has different conclusions, is unfair, so the court of first instance will cancel and order the defendant to pay the above money.