2. The appeal costs and incidental appeal costs shall be borne respectively by each person;

The defendant shall take the procedure for registration of cancellation of ownership transfer registration of the Daejeon District Court on February 2, 2006 with respect to the 2/3 shares of each of the real estate listed in the separate sheet (hereinafter referred to as "B"), and the procedure for registration of cancellation of each ownership transfer registration of the Daejeon District Court on February 22, 2006, with respect to the 398,806,047 won and 240,000,000 won among them, from May 2, 2013 to April 18, 2014, with respect to the 80,000,000 won from April 18, 2014 to April 60, 483,90 won, from January 5, 2011 to 6,406,346 won from the date following the date of complete payment, to 15% from the date of complete payment, respectively, for each of the two to 15% from the date of complete payment.

2. Purport of appeal

The part against the defendant in the judgment of the first instance is revoked, and the plaintiff's claim corresponding to the revocation is dismissed.

3. Purport of incidental appeal;

Of the judgment of the first instance, the part against the plaintiff seeking additional payment shall be revoked. The defendant shall pay to the plaintiff 6,406,346 won with 5% interest per annum from March 7, 2017 to November 2, 2017, and 15% interest per annum from the next day to the day of complete payment.

The court of first instance dismissed the Plaintiff’s claim for monetary payment due to the establishment of the right to collateral security against the Defendant among the instant lawsuit, but the Plaintiff did not appeal or appeal incidental thereto.

Therefore, the above part of the judgment of the court of first instance is excluded from the object of this court.

2. Basic facts

The reasoning for this part of this Court is that the relevant part of the reasoning of the judgment of the court of first instance is the same as that of the relevant part, except for those used or added as follows. Thus, this Court shall accept it as it is in accordance with the main sentence of Article 420

The part concerning Defendant B’s “Defendant B” is described as “B,” and each of “Defendant C” is described as “Defendant”.

○ 3. The following shall be added to 12 lines:

“The Plaintiff, at the time, knew M that the Plaintiff and the Defendant were joint buyers.”

○ 4 "2016" in each of the categories below 1, 2, 3 and 2 below the second Schedule shall be read as "206".

○ 5. The following shall be added to 6 lines below the 5 pages:

On May 31, 2005, “The daily price of Chungcheongnam-do, Chungcheongnam-do, where the instant real estate is located, was designated as a land transaction permission area under the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) by setting the designated period on May 31, 2005 as “from July 2, 2005 to February 16, 2008.” On February 11, 2008, the designated period was re-designated as “from February 17, 2008 to February 16, 2009.” The designated period was not re-designated as a permission area after the said designation period has expired.”

○ 5 pages 18 shall be added to the column for 5 pages (based on recognition).

3. Determination as to the request for cancellation registration

A. The parties' assertion

1) Summary of the Plaintiff’s assertion

The Plaintiff and the Defendant decided to purchase the instant real estate by bearing 2/3 of the purchase price and 1/3 of the Defendant, and purchased the instant real estate from January 25, 2006 under the joint name as indicated in the sales contract as of January 25, 2006, and completed the registration of ownership transfer under the Defendant’s sole name. Ultimately, the Plaintiff entrusted the Defendant with the registration name of 2/3 of the instant real estate in the name of the Defendant.

Pursuant to Article 4 of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”), a title trust agreement and any change in real rights thereto are null and void. Accordingly, B has the right to claim the cancellation of each ownership transfer registration of this case as to shares of 2/3 of the remaining real estate in this case registered in the name of the defendant among the real estate traded in this case against the defendant based on ownership

In addition, since the instant sales contract between B and the Plaintiff is valid, the Plaintiff has the right to claim for ownership transfer registration of 2/3 of the remaining real estate of this case against B pursuant to the instant sales contract.

Therefore, with respect to the remaining real estate of this case, the Plaintiff sought the cancellation registration of each ownership transfer registration of this case on behalf of the Defendant in order to preserve the right to claim ownership transfer registration based on the sales contract of this case.

2) The defendant's argument

The Plaintiff and the Defendant jointly purchased the instant real estate from M on January 25, 2006, with the Plaintiff’s 2/3 of the purchase price, and the Defendant’s 1/3 of the purchase price. However, in preparation for the objection raised by B, the Plaintiff and the Defendant concluded a special agreement that the seller may unilaterally cancel or rescind the contract by 12:00 following the date when the contract was delegated by B, and M was revoked or rescinded by the Plaintiff following the day when the contract was canceled by B.

After that, on February 15, 2006, the Defendant independently purchased the instant real estate between B and B, and drafted a sales contract as of February 15, 2006, which reduced the purchase price to reduce taxes. Accordingly, there is no title trust agreement between the Plaintiff and the Defendant.

However, 1/3 of the purchase price of the instant real estate was borne by the Plaintiff, and thus, if the Defendant had any money to be returned to the Plaintiff, it is merely the amount equivalent to 1/3 of the purchase price.

B. Terms and conditions of the sales contract for the instant sold real estate, and existence of a title trust agreement

1) According to the following circumstances, based on the facts acknowledged as above, Gap evidence Nos. 1, Eul evidence Nos. 2, and the purport of the entire testimony and pleading by witnesses M of the first instance trial, Eul, and L, the sales contract for the instant real estate was concluded with the same content as the sales contract entered into on January 25, 2006, and the purchaser is deemed the plaintiff and the defendant.

① While M confirmed the intent of the Plaintiff to purchase through L while being entrusted with the sale of the instant real estate from B, M entered into a sales contract on January 25, 2006.

On the date of the conclusion of the above sales contract, MA and the Plaintiff participated in each side of the buyer, and the Plaintiff expressed his intention to jointly purchase with the Defendant to M, and on January 25, 2006, entered the sales contract as “Defendant, one other, and the Plaintiff’s agent” as the buyer.

Therefore, the buyer of the above sales contract is the plaintiff and the defendant, and the plaintiff entered into the above sales contract on behalf of the defendant as to his own share, and as to the defendant's share, M& as the buyer's agent B was also known.

② The Plaintiff and the Defendant jointly assumed the sales price of the instant sales contract (in relation to the apportionment ratio, the Plaintiff asserted that it is Plaintiff 2/3 and Defendant 1/3, while the Defendant asserted that it is Plaintiff 1/3 and Defendant 2/3, the Plaintiff’s assertion that it was jointly assumed the sales price is consistent with the parties’ assertion regarding the joint apportionment of the sales price.

③ The Defendant asserts that the sales contract on January 25, 2006 was cancelled or cancelled on January 26, 2006, and that the sales contract was concluded separately between B and the Defendant on February 15, 2006.

Although the statements in Eul evidence Nos. 4 and Eul evidence of the first instance trial witness M and L correspond to the defendant's argument, in light of the following facts: (a) the promissory note paid as down payment pursuant to the sale and purchase agreement of Jan. 25, 2006 is not returned to the plaintiff on Jan. 26, 2006; (b) the promissory note amounting to the balance stated in the sale and purchase agreement of Jan. 25, 2006 is delivered to the plaintiff on the seller's side; and (c) the Defendant was unable to submit a sales and purchase agreement of Feb. 15, 2006 between Eul and Eul (the defendant asserts that it was impossible to use it after the completion of the registration of ownership transfer, but it is not possible to purchase and purchase each steam; and there is no other evidence to deem that the sale and purchase agreement was cancelled or cancelled on Jan. 25, 2006.

④ Ultimately, the instant sales contract, effective between the parties, would be based on the sales contract dated January 25, 2006. The sales contract was made on February 15, 2006, with the sales price of KRW 701,291,800, and the buyer alone was made on his/her own by the Defendant. However, the buyer, who is the special terms of the sales contract dated January 25, 2006, may modify for a land transaction permission later. The reported amount is 80,000,000, in terms of the transaction reduction report and the purpose of acquiring land transaction permission.

2) As above, the instant sales contract was concluded between the Plaintiff and the Defendant as a joint purchaser and the seller B. As to the instant real estate sales contract, as seen earlier, that the Defendant was registered in the sole name of the Defendant after obtaining land transaction permission by designating the Defendant as the buyer.

In light of the developments leading up to the conclusion of the sales contract, the details of the land transaction permission and registration, etc., the Plaintiff and the Defendant would have concluded a title trust agreement between the Plaintiff and the Defendant to decide the Plaintiff’s shares among the instant real estate sold in the name of the Defendant. Furthermore, as long as the Plaintiff and the Defendant were the title truster, the said title trust agreement constitutes the so

C. Details of shares of the Plaintiff and the Defendant

The reasoning for this part of this Court is that the relevant part of the reasoning of the judgment of the court of first instance is the same as that of the relevant part of the reasoning of the judgment of the court of first instance.

D. Determination as to this part of the claim

(i) the existence of a preserved right;

A) In a case where a land transaction contract designated as a land transaction permission area under the National Land Planning and Utilization Act is under the dynamic invalidation of a land transaction contract, but the designation of a land transaction permission area for the said land has not been revoked or the designation period of a permission area has expired, the said land transaction contract becomes final and conclusive, and the transaction party may request for the performance of the claim for the transfer or creation of rights, such as the ownership of the land, on the basis of the said contract (see, e.g., Supreme Court en banc Decision 98Da404

Although the designation period of the land transaction permission area for the instant sale real estate has expired, as seen earlier, B is obligated to implement the registration procedure for transfer of ownership for 2/3 shares of the remaining real estate in the instant sales contract to the Plaintiff, barring any special circumstance.

B) As to this, the Defendant asserts that B applied for permission of land transaction with the Defendant as the sole buyer, prepared a sale contract, and completed registration of ownership transfer under the name of the Defendant. Accordingly, the application for permission of land transaction based on the sale contract as of January 25, 2006, which was waived under the agreement of the parties, or clearly expressed the intent of both parties to refuse to perform the duty of cooperation, constitutes either the case where the other party does not continue the transaction contract, or the case where the land transaction permission and the registration of ownership transfer had already been completed under the name of the Defendant, and thus, the registration of land transaction permission and the registration of ownership transfer under the joint purchaser as of January 25, 2006 became null and void.

However, as seen earlier, it cannot be deemed that the land transaction permission granted by the Defendant as the buyer and the registration of transfer of ownership in the Defendant’s sole name was made for the implementation of the title trust agreement between the Plaintiff and the Defendant. Accordingly, it cannot be deemed that the land transaction permission pursuant to the sale contract concluded on January 25, 2006 was waived under the agreement of the parties, or that the Plaintiff’s side and B clearly expressed their intent to refuse the performance of the obligation to cooperate in the land transaction permission, or that the Plaintiff’s side or B did not continue to exist the said sale contract.

In addition, since the land transaction permission was not re-designated even though the designation period of the land transaction permission period for the instant real estate was expired, the instant sales contract became effective on a conclusive basis without a separate land transaction permission.

Furthermore, the circumstance that the registration of ownership transfer was completed in the name of the defendant with respect to 2/3 shares of the remaining remaining real estate of this case does not constitute a reason to invalidate the sales contract of this case. Even if the defendant's assertion on this part was made as non-performanceable defense, as seen earlier, insofar as the registration of ownership transfer in the name of the defendant with respect to 2/3 shares of the remaining real estate of this case was cancelled as based on the title trust, it cannot be deemed that the duty of ownership transfer to the plaintiff of this case was impossible.

The above argument of the defendant is without merit.

(ii)the existence of subrogation claims

Since a title trust agreement and a change in the real right to real estate made pursuant to the main sentence of Article 4(1) and (2) of the Real Estate Real Name Act are null and void, the registration of ownership transfer with respect to 2/3 shares out of the remaining real estate in the name of the defendant is null and void. Therefore, since the ownership of 2/3 shares out of the remaining real estate in this case remains in B, the defendant is obligated to implement the procedure for registration of cancellation of ownership transfer with respect to 2/3 shares out of the remaining real estate in this case.

3) In order to preserve the right to claim ownership transfer registration of 2/3 shares out of the remaining real estate in this case against B, the Plaintiff’s claim for cancellation of each ownership transfer registration against the Defendant on behalf of B for the sake of preserving the right to claim ownership transfer registration of 2/3 shares out of the remaining real estate in this case is reasonable

4. Determination on the claim for monetary payment due to the acquisition by agreement

The reasoning for this Court concerning this part is that each of the “Defendant B” portion is “B”, “Defendant C” portion is “Defendant C”, and “payment from the Plaintiff” portion of “payment from the Defendant” of “payment from the Defendant” of “payment from the Defendant” of “payment from the Defendant” of the reasoning of the first instance judgment is identical to the corresponding part of the reasoning of the first instance judgment, and thus, it is acceptable in accordance with the main sentence of Article 420 of the Civil Procedure Act.

5. Conclusion

The claim for registration of cancellation of this case and the claim for payment of money due to the acquisition of consultation are justified within the scope of the above recognition, and the remaining claims shall be dismissed as there is no reason. The judgment of the court of first instance is justifiable as the conclusion is just, and the defendant's appeal and incidental appeal are dismissed.

Judges Kim Sang-woo

Judges Dok-type