April 19, 2017

2. The costs of appeal shall be borne by the Plaintiff.

3. In paragraph 2 of the order of the first instance judgment, the phrase “attached appraisal 2” shall be corrected to the phrase “the attached appraisal 10, 4, 5, 6, 7, 8, 11, and 10 of the attached appraisal 10, 4, 5, 6, 7, 8, 11, and 1

1. Purport of claim

The Defendant: (a) performed the registration procedure for cancellation of ownership transfer registration completed on February 27, 2015 by the Daegu District Court (Seoul District Court) No. 14638 with respect to forest land size 672 square meters in Gu-si, Gu-si, ○○-si, △△△△△ (number 3 omitted); (b) performed the procedure for cancellation of the construction (extension) report in the attached list; and (c) agreed to implement the procedure for

2. Purport of appeal

Of the judgment of the first instance, the part against the Plaintiff shall be revoked. The Defendant, in turn, shall perform the procedure for cancellation of ownership transfer registration completed on February 27, 2015 under the receipt of No. 14638 of the Gu District Court, Daegu District Court, on the part of 1, 2, 3, 10, 11, 9, and 1 of the attached Form No. 1, 265 square meters among the 672 square meters of forest land in the Gu-si ○○○○○○-si, Si, Si-si (number 3 omitted), followed the procedure for cancellation of the registration of ownership transfer registration, and consented to the implementation of the procedure for cancellation of the construction (extension) report

A. On October 4, 2013, the Plaintiff is the owner of the forest land (number 1 omitted) located in the Gu-si ○○-ri △△-ri (hereinafter “forest land number 1 omitted”). The Plaintiff newly built the farmer’s housing on the ground of the said forest land.

B. On September 2, 2013, the Defendant purchased the forests and fields (number 2 omitted) and the ordinary houses on the land, which are attached to the letter of forests and fields (number 1 omitted) from Nonparty 1, ○○-ri, △△△ (hereinafter “forest and fields” (number 2 omitted) and the ordinary houses on the land. On September 4, 2013, the Defendant completed the registration of ownership transfer on the said forests and general houses.

C. (Land Number 2 omitted) Forest land and (Land Number 1 omitted) forest land (hereinafter “instant forest”) are originally owned by the Plaintiff. The Plaintiff completed the ownership transfer registration (hereinafter “the ownership transfer registration of this case”) by the Daegu District Court No. 14638, Feb. 27, 2015, which was unregistered on February 27, 2015, on the ground that the instant forest was traded on February 27, 2015 with respect to the Defendant.

D. On May 19, 2015, the old U.S. Mayor accepted a report on the extension of a single house on the instant forest land and (number 2 omitted) forest land (hereinafter “the instant extension report”) on May 19, 201 with the owner of the building as the Defendant (the partial report was accepted on July 16, 2015).

E. Since then, ① the land of this case was conducted with usual coal farming operations for the forest of this case, ② the attached appraisal of the forest of this case, ② the part of the land of this case connected each point in order to be marked 1, 2, 3, 10, 11, 9, and 10 in the attached table No. 10, 4, 5, 6, 7, 8, 11, and 10 in the annexed table No. 10, 4, 6, 8, 11, and 10 in the annexed table No. 10, 4, 5, 6, 7, 8, 11, and 10 in the annexed table No. 10, and the part of the land of this case was constructed (hereinafter referred to as “A,” and “BB”) with the boundary of the said stone, and the basic construction for the extension of detached houses under the report of this case was completed with respect to the part of this case.

F. On September 9, 2015, the Defendant remitted to the Plaintiff KRW 17 million, which was the transaction value stated at the time of the instant transfer registration.

G. Accordingly, on September 30, 2015, the Plaintiff deposited the said KRW 17 million in the Defendant’s future as the Daegu District Court Kimcheon-si 2015Hun-Ga723 on the ground of the Defendant’s refusal to receive payment.

[Ground of recognition] The fact that there is no dispute, Gap's evidence 2 through 5, 8, 11, 13, and 15 (including branch numbers, if any; hereinafter the same shall apply), the result of the survey and appraisal conducted by the non-party 2 of the first instance court, the purport of the whole pleadings

2. Determination on the application for cancellation registration of ownership transfer

A. The plaintiff's assertion

In order for the Plaintiff to extend a building on the land of the instant forest, a farmer’s house newly built on the ground of the forest land (number 1 omitted) needs to be changed to the ordinary house. There were problems, such as: (a) heavy time was required for the alteration; (b) full exclusive charges, which had been newly constructed, reduced, and exempted from the said farmer’s house; and (c) construction of a road exceeding 6 meters wide; and (b) the Plaintiff agreed with the Defendant, who is the owner of ordinary house on the land (number 2 omitted) adjacent to the instant forest land, to title trust the instant forest to the Defendant; and (d) file the instant extension report in the name of the Defendant after the title trust was registered with the Defendant. Since the instant transfer of ownership registration completed under the said agreement was completed by a title trust agreement or a false

B. Determination of the terms of contract between the Plaintiff and the Defendant

Comprehensively taking account of the following circumstances revealed by the evidence Nos. 1, 6, and 9, the testimony of Non-Party 3 of the first instance trial witness and the purport of the entire pleadings, the Plaintiff is determined to have agreed with the Defendant to sell a part of the forest land in this case, which is in contact with the forest land owned by the Defendant, to the Defendant, but to have agreed to trust only the name of the Defendant.

① On the second date for pleading in the first instance trial, the Defendant: (a) delegated the Plaintiff with the conclusion of the sales contract on the instant forest; (b) did not attend the place where the said sales contract was prepared; and (c) stated that he did not possess the said sales contract. (b) Although the registration of transfer of ownership on the instant forest was completed in the future, the Plaintiff still holds the registration certificate on the said forest.

③ After completing the registration of ownership transfer of the forest of this case, the Plaintiff would have been assumed by the Defendant if the Plaintiff sold the forest of this case, namely, registration and license tax for conversion, development activities, construction, etc. required to develop the forest of this case, expenses for purchasing national housing bonds, statutory charges for creating alternative forest resources, expenses for acquiring authorization and license guarantee insurance, expenses for applying for ownership transfer registration of this case to the Defendant, and expenses for civil engineering design and civil engineering construction for the forest of this case.

④ Civil engineering works on the instant forest have been performed at the Plaintiff’s request.

⑤ On September 9, 2015, the Defendant transferred KRW 17 million to the Plaintiff, which had passed six months from February 27, 2015, the date of receipt of the instant transfer registration.

(6) However, the Plaintiff and the Defendant merely appear to be a neighbor and not a relative relationship. Nevertheless, it is difficult to view that the Defendant was entrusted with the entire forest land of this case by accepting disadvantages, such as criminal punishment due to title trust.

7) In the process of the civil engineering work on the instant forest land, the Plaintiff constructed a stone shed between Section 1 and Section 2. If the Plaintiff wishes to utilize the entire forest land after the extension of a single house as a whole under title trust with the Defendant, it would have not been necessary to construct a stone shed and divide the said forest land into sections.

8 The Plaintiff performed a basic construction project for the extension of detached houses only for the two parts, the boundary of which is specified by tin axiss.

9) In the first instance trial, the Plaintiff made a statement to the effect that “At the time of the preparation of the real estate sales contract as of February 27, 2015, the lower part of the instant forest land (number 2 omitted) was sold to the Defendant.”

10) At the time of the civil engineering work for the forest of this case, Nonparty 3 testified that “When the development of the forest of this case is terminated, the forest of this case will be set up in the lower ground behind the Defendant’s office.”

C. Determination

1) Therefore, barring any special circumstance, the Defendant is liable to implement the procedure for the cancellation of ownership transfer registration, which has been completed in relation to the portion of the instant forest, among the instant forest land, to the Plaintiff, inasmuch as the title trust agreement and ownership transfer registration with respect to the portion of the instant forest land are entirely null and void pursuant to Article 4 of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”).

2) As to this, the Defendant asserted that the Plaintiff’s illegal title trust in violation of the Real Estate Real Name Act constitutes an act of illegal cause by itself, and thus, it cannot seek correction thereof. However, a title trust agreement under the Real Estate Real Name Act refers to an agreement between the person having the actual right to real rights to real estate and another person to hold or hold the real right to real estate internally and the registration thereof is made in the name of the other person. Therefore, it cannot be concluded that the agreement itself constitutes a violation of good customs and other social order. In addition, the above Act does not, in principle, invalidate only the change of the real right based on the registration and its registration and does not prohibit the title truster from exercising his rights based on other legal relations, but it does not infringe on the essence of private autonomy and guarantee of property rights by imposing administrative sanctions or punishment against the title truster. Thus, even if the above Act was enacted for the purpose of preventing any act against the law, such as speculation, tax evasion, evasion, and evasion of the law, etc., which abuse the real estate registration system, it cannot be viewed as illegal cause (see the Defendant’s Opinion 12037.

3. Implementation of the procedure for cancellation of the extension report of this case and request for consent

The Plaintiff sought the revocation of the instant extension report under the name of the Defendant on the instant forest land. According to the provisions of Article 11(7) of the Building Act, the revocation of a building permit shall be conducted ex officio by an administrative agency in the event that a person who obtained the building permit fails to commence construction works within a given period of time, and a building permit deemed granted through the building report may be revoked ex officio by the administrative agency pursuant to the above provisions. In other words, it is reasonable to deem that the administrative agency may revoke the building report ex officio. In other words, the administrative agency must determine whether to revoke the building report ex officio, and it does not require the administrative agency to revoke the building report upon the application

Therefore, seeking the execution of the procedure for cancellation of the building report against the Defendant, the owner of the building, cannot be deemed as a means suitable for the resolution of legal disputes asserted by the Plaintiff. Therefore, the above claim part among the lawsuit in this case is unlawful because there is no benefit of lawsuit.

4. Conclusion

Therefore, the part of the claim related to the extension report in the lawsuit in this case is unlawful, and the plaintiff's claim except the above rejection part is accepted within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. Accordingly, the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. Thus, the judgment of the court of first instance is dismissed as it is so decided as per Disposition by the court of first instance, since it is obvious that "the attached appraisal bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb

[Attachment]

Judges Kim Hyun-hwan (Presiding Judge)