August 23, 2018

A. The defendant:

1) For KRW 232,325,905 respectively and KRW 221,620,375 among them, 5% per annum from March 31, 2017 to December 15, 2017; 5% per annum from March 31, 2017 to September 20, 2018; and 15% per annum from each of the following dates to the date of full payment;

2) For Plaintiff 348,48,858 and 332,430,562 won among them, 5% per annum from March 31, 2017 to December 15, 2017; 5% per annum from March 31, 2017 to September 20, 2018; 5% per annum from September 20, 2018 to September 20, 2018; and

sub-payment.

B. Each of the plaintiffs' remaining claims is dismissed.

2. Of the total litigation costs, 1/9 shall be borne by the Plaintiffs, and the remainder by the Defendant, respectively.

3. The portion of payment of the amount under paragraph (1) may be provisionally executed.

1. Purport of claim

The Defendant paid to Plaintiff 1 and Plaintiff 2 410,783,913 won, and each of the above amounts to Plaintiff 1 and Plaintiff 2 at 5% per annum from March 30, 2017 to the service date of a duplicate of the complaint of this case, and 15% per annum from the next day to the payment date of the copy of the complaint of this case (the Plaintiff added the legal interest or delay damages claim in advance from the date following the delivery date of the duplicate of the complaint of this case to March 30, 2017, and extended the claim for the return of unjust enrichment of KRW 63,295,800 (Plaintiff 1, Plaintiff 284,512, Plaintiff 327,126,71).)

2. Purport of appeal

A. The plaintiffs

The judgment of the first instance is modified as follows. The defendant shall pay to the plaintiff 1 the amount of KRW 255,771,429, the amount of KRW 255,771,429, the amount of KRW 383,657,142, and the amount of KRW 15% per annum from the day following the delivery of a copy of the complaint of this case to the day of full payment.

B. Defendant

The part against the defendant in the judgment of the first instance is revoked, and all of the plaintiffs' claims corresponding to the revocation are dismissed.

The reasoning of this court is that the reasoning of this case is stated in the judgment of the court of first instance. The court held that " March 30, 2017," " March 31, 2017," "as of March 31, 2017," "as of March 31, 2017," and that the plaintiffs' claims extended in the trial of the court of first instance are stated in the reasoning of the judgment of the court of first instance, except that part of the reasoning of the judgment of first instance is stated in paragraph 3. Accordingly, the grounds for appeal by the plaintiffs and the defendant, except for the part concerning the determination on the extension claim below, are not significantly different from the argument of the court of first instance, and all of the evidence additionally submitted to the court of first instance are justified in view of the fact-finding and legal principles

2. Judgment on the part of the plaintiffs' extension claim

(a) A claim for the additional return of unjust enrichment equivalent to the registration tax, education tax, acquisition tax, special rural development tax, costs for purchasing national housing bonds, costs for certified judicial scriveners' fees, attorneys' fees, and the total amount of 63,295

1) Summary of the plaintiffs' assertion

In acquiring △△ 4 parcels and their ground buildings, taxes such as acquisition tax, expenses for purchasing national housing bonds and local development public bonds, and attorney's fees in the process of resolving disputes, and 63,295,800 won were disbursed in addition to purchase funds. Thus, the defendant should return them to the plaintiff 1 and 2, respectively, 18,084,512 won (=63,295,800 won x 2/7), and the plaintiff 3 to the plaintiff 27,126,71 won (=63,295,800 won x 3/7) and legal interest or delay damages thereon.

2) Relevant legal principles

Damage suffered by a title truster due to the invalidation of a contract under title trust agreement is not the relevant real estate itself but the purchase fund provided to the title truster. Therefore, if the title trustee received acquisition tax, registration tax, etc. that should be disbursed for the registration of ownership transfer from the title truster, such funds also are paid to the title trustee to acquire the ownership of the relevant real estate in accordance with the said contract under the said contract under the title trust agreement. Thus, barring any special circumstance, the title trustee included expenses for acquisition of acquisition tax, registration tax, etc. paid by the title truster to the title trustee in addition to the amount equivalent to the purchase price of the relevant real estate should also be returned to the title truster as unjust enrichment (see Supreme Court Decision 2007Da90432, Oct. 14, 2010, etc.).

3) Determination on the part of the claim for refund of taxes, such as registration tax, education tax, acquisition tax, and special rural development tax

According to the contents of Gap evidence Nos. 13 through 17, the order of submission of tax information and the whole purport of arguments against the head of △△△△-si Incheon Metropolitan City, the deceased paid various taxes, such as registration tax, around the day of the registration of ownership transfer to each of the defendant with respect to the land and building on 4 lots of △△△△-si, and the following facts: (i) the registration tax of 9,450,000 won prior to the merger, education tax of 1,890,000 won, acquisition tax of 6,30,000 won, special rural development tax of 630,000 won, (number No. 4 omitted), education tax of 720,000 won, education tax of 2,40,000 won, acquisition tax of 2,000 won, acquisition tax of 40,000 won, and special rural development tax of 7,000 won, 206,700 won, and 4000 won.

Examining the above facts in light of the legal principles as seen earlier, for the acquisition of △△ 4 parcels and above-ground buildings, the title truster: (i) the amount of taxes such as registration tax (i.e., 9,450,000 + KRW 1,890,000 + KRW 6,300,000 + KRW 3,600,000 + + KRW 720,000 + + KRW 2,400,000 + KRW 2,400 + KRW 4,50,000 + KRW 810,000 + + KRW 2,70,000 + KRW 648,60,000 + + KRW 432,000 + KRW 432,432,200 + 4300,000 + KRW 43200,00). Therefore, the Defendant shall return the loss incurred by the title trustee’s unjust enrichment to the title trustee.

4) Determination on the purchase cost of national housing bonds and the claim for refund of expenses of certified judicial scrivener and lawyer

In order to purchase land or buildings and to complete the registration of ownership transfer therefor, the applicant’s purchase amount to be purchased is calculated by multiplying the standard market price or acquisition value of the relevant real estate by a certain ratio. Although the applicant has purchased the amount of purchase with interest after maturity and received redemption with a certain interest rate fixed for the purpose of redemption with maturity, there are more cases where the applicant purchases it with a certain amount of interest rate fixed for the purpose of redemption with interest and receives redemption with maturity maturity, rather than with a maturity of 1-2%, a long-term after maturity of 5 years is ordinarily five years and the interest rate is only 1-2%, where he/she makes a report and sells the loss immediately after purchasing it (hereinafter “this discount”). In this case, a certified judicial scrivener representing the registration of real estate shall act on behalf of the applicant for the above discount. As such, if the amount of discount on national housing bonds or regional development bonds is discounted, the difference (purchase - purchase amount) and expenses equivalent to such discount amount should be disbursed, but if the amount is much lower than the purchase amount, it is not a general expense or a discount.

In this case, according to the overall purport of Gap evidence Nos. 18 through 20, Gap evidence Nos. 22-1, 3-1, and 14,690,000 won prior to the merger (number No. 2 omitted), the purchase amount of national housing bonds related to land and above-ground buildings is 5,230,000 won prior to the merger (number No. 4 omitted), and the purchase amount of national housing bonds related to land and above-ground buildings is 3,610,00 won prior to the merger (number No. 5 omitted), (number No. 6 omitted), (number No. 7 omitted), the purchase amount of local development bonds related to the land is 320,00 won after the division, (number No. 6 omitted), (number No. 7 omitted), and (number No. 7 omitted, and (3) the purchase amount of national housing bonds related to land was paid to a certified judicial scrivener and a certified judicial scrivener without delay after the purchase, and (4) the purchase amount of the above land was paid to a certified judicial scrivener.

According to the above facts, 3,66,57 won (=23,557 won + 283,000 won + 3,360,000 won) of the deceased’s expenses incurred in purchasing the national housing bonds paid by the deceased as above and the expenses incurred by a certified judicial scrivener (=23,557 won + 3,60,000 won) are included in damages suffered by the deceased due to the invalidity of a title trust agreement

On the other hand, in the case of national housing bonds related to each land (number 4 omitted), each (number 5 omitted), and each above ground building, there is no evidence to prove that the deceased paid discount expenses or fees to financial institutions or certified judicial scriveners through the aforementioned discount method as seen earlier. However, in light of the circumstances where the ownership transfer registration of each above land has been completed, it is possible for the deceased to purchase national housing bonds in a fixed manner, but in this case, it cannot be viewed that the purchaser has suffered losses equivalent to the purchase cost because he has the right to exercise his right to demand reimbursement of the above claim after maturity. In addition, in the case of national housing bonds related to each land (number 4 omitted), (number 5 omitted), each (number 5 omitted), and each above ground building, as in the case of national housing bonds related to other land and above ground buildings, it is likely that he would have selected a discount method other than regular purchase, but it is impossible to calculate the purchase cost due to the lack of evidence therefor. Accordingly, the plaintiffs's assertion related to the above (number 4 omitted prior to the merger, national housing bonds and its respective ground buildings are rejected.

Furthermore, the Plaintiffs sought payment of KRW 2,00,000 at the attorney’s expense to acquire land and above-ground buildings (number 2 omitted) before the merger. However, the Plaintiff’s assertion on this part is not acceptable on the sole basis of the evidence No. 22, it is insufficient to recognize that the said attorney’s cost is the cost associated with the acquisition of land and above-ground buildings (number 2 omitted) before the merger, and there is no other evidence to acknowledge otherwise.

5) Sub-decisions

Therefore, the Defendant should return 37,469,357 won in total, including 33,802,800 won and 3,666,557 won to the Plaintiffs in relation to the acquisition of the land and the building on the ground of 4 parcels of △△△△△△ and the expenses for a certified judicial scrivener as described in paragraph (4).

(b)the additional claim for damages for delay or statutory interest;

1) Summary of the plaintiffs' assertion

The Defendant becomes aware of the invalidity of a title trust agreement with respect to the △ 4 parcels of △△△, as it is around March 30, 2017, and thus, should pay statutory interest or delay damages on unjust enrichment, such as purchase funds and taxes, from that time.

2) Relevant legal principles

Article 748(2) of the Civil Act provides that a malicious beneficiary shall compensate for any loss caused by the return of the profits he/she received with interest added thereto, and Article 749(1) of the same Act provides that a beneficiary is liable to return profits as a malicious beneficiary from that time when he/she becomes aware that no legal ground exists after he/she received the profits. Here, the term “faith” refers to recognizing that his/her ownership of the profits does not have any legal ground. In other words, it is insufficient to recognize that the circumstances that the holding of the profits does not have any legal ground, i.e., the fact that the purchase fund received by the trustee under a contract title trust, which is the good faith of the seller, was paid according to a title trust agreement, and that the title trust agreement was null and void pursuant to Article 4(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name (see, e.g., Supreme Court Decision 209Da24187, Jan. 28, 2010).

3) Determination

The preceding judgment rejected the Defendant’s assertion that a title trust agreement was made with respect to a large number of real estate located in the name of the Defendant, including △△ Four parcels, and rejected the Defendant’s assertion that a title trust agreement was made, and determined that the contract title trust was made with respect to the land located in △△ Four parcels, and that each third party’s title trust with respect to the remaining land was null and void, and that each of the above title trust agreements was made null and void. The foregoing preceding judgment was as seen earlier by the Supreme Court’s dismissal ruling (2016Da278852) on March 30, 2017, which was rendered on March 31, 2017 by serving each of the Plaintiffs

Examining the above facts in light of the legal principles as seen earlier, it is reasonable to deem that the Defendant, at the latest, knew of the circumstances that the title trust agreement on 4 parcels of △△△ was null and void, around March 31, 2017, which became final and conclusive. Therefore, from that time, the Defendant is obliged to pay statutory interest on unjust enrichment, such as purchase funds and taxes, for the said parcels of real estate, pursuant to Article 748(2

3. Parts:

○○ KRW 932,669,357 (“B”) at the bottom of the 14th judgment of the first instance (i.e., KRW 895,200,000 for purchase fund + KRW 895,200,000 for purchase fund + KRW 37,469,357 for tax and certified judicial scrivener’s expenses.

○○ The lower part of the 14th judgment at the lower part of the 14th judgment is as follows.

Therefore, the defendant is obligated to pay 232,325,905 won to plaintiffs 1 and 2 for each of the following 22,32,325 won [(932,69,357 won - 19,528,687 won) x 2/7, and less than won] 221,620,375 won which are cited by the judgment of the court of first instance until 30.5% per annum from March 31, 2017 to December 15, 2017; 30.5% per annum from the judgment of the court of first instance to 30.6% per annum from the judgment of the court of first instance; 30,705,530 won which are added by the remaining court of first instance to 30.5% per annum; 28% per annum from the judgment of the court of first instance to 30.5% per annum; 36% per annum from the judgment of the court of second instance to 38.5% per annum

4. Conclusion

Therefore, the plaintiffs' claims of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as there is no ground, and the judgment of the court of first instance, including the claims expanded in the trial, shall be modified as above, and it is so decided as per Disposition.

Judges Kim Jae-ho (Presiding Judge)

1) From February 2002 to February 2004, when the registration of ownership transfer for each of the above lands or above-ground buildings was completed, real objects such as a bearer bond certificate were deemed to have been issued at the time of issuing national housing bonds. At present, without issuing real objects, the so-called registration issuance method was changed by which the name and purchase amount of the purchaser are electronically registered.

Note 2) This is because government bonds whose principal and interest pursuant to the agreed interest rate are guaranteed are purchased.