[2] In a case where the registration of real estate disposal by the title trustee is null and void, whether the person who inherited the title truster’s status may seek cancellation of the registration directly based on ownership without subrogation of the title trustee (negative)

[2] In a case where the registration of transfer that a real estate trustee Byung transferred to one of the co-inheritors of the real estate title trust property in excess of the inherited shares to Eul is externally null and void, the right to seek the cancellation of the registration that is null and void is only possible by exercising the right to claim the removal of interference based on the ownership. As the title to the part equivalent to the inherited shares of Gap, a co-inheritors, who is another co-inheritors, does not become the co-inheritors of the real estate from Byung, the title trustee Byung, to the future, and thus, cannot exercise the right to claim the removal of interference based on the ownership. Thus, the right to claim the cancellation of the registration of Eul, a direct invalidation of the cause without a subrogation of the title trustee

1. Regarding ground of appeal No. 1

Based on the evidence in its reasoning, the court below recognized the fact that the real estate in this case was purchased as the plaintiff 1's husband, the plaintiff 2, and the deceased non-party 1, the father of the plaintiff 1, in order to use it as the site for the construction of a private house of the non-party chemical company that he operated on June 10, 1975, and registered under his own name on October 29, 1986, and entrusted the title to the non-party 2, who was an executive officer of the above non-party company on October 29, 1986. In comparison with the record, the court below's above fact-finding is justified, and even if the court below rejected the part of the court below's rejection on the ground that there was no evidence to acknowledge the authenticity of the evidence No. 2, even if it was presumed that the contents are contrary to the above fact-finding, as properly decided by the court below, the above error in the court below cannot affect the conclusion of the judgment. Ultimately, there is no reason to view.

2. Regarding ground of appeal No. 2

The court below held that in the case of the so-called title trust where the owner of real estate delegates only the title of ownership on the registry to another person, regardless of whether the trust contract is terminated, the ownership of the real estate remains in the internal relationship. The internal relationship here means the relationship between all the parties, including the trusters, in the case where there are two or more trusters of the trust contract. Thus, in the case where one title trust was entrusted under a single title trust contract and several co-inheritors jointly succeed to their status, unless there are special circumstances, the co-inheritors cannot assert any ownership relationship different from the content of the joint inheritance. The part exceeding the Defendants' inheritance shares in the registration of the real estate of this case, which is the inherited property of the deceased non-party 1, in the name of co-inheritors, is completed without any reason in relation to the plaintiffs who jointly succeeded to the status of the truster (the defendants actively participated in the embezzlement or breach of trust by Non-party 2, who is the title trustee of the real estate of this case, in excess of the inheritance shares of the defendants, the plaintiffs' obligation to cancel the ownership transfer registration of this case.

The judgment of the court below that the plaintiffs and the defendants, co-inheritors due to the death of the non-party 1, who were co-inheritors and the above non-party 2, the title trustee of the real estate of this case, were in the status of joint trust. However, as determined by the court below, the registration of ownership transfer in the name of the defendants, which was completed with respect to the real estate of this case after the death of the non-party 1, was based on the letter of recognition accepted by the defendants' claims by the above non-party 2 in the lawsuit claiming ownership transfer registration against the above non-party 2. The above non-party 2, the title trustee, merely part of the co-trustee, did not constitute an act of disposal to terminate the title trust relationship, and it is obvious that the above non-party 2's act of exceeding the defendants' inheritance shares constitutes an act of disposal to terminate the title trust relationship, and it does not constitute an act of changing the form of external ownership between the title trustee and the above non-party 2 (see Supreme Court Decision 92Da47823, Apr. 27, 1993). 193).

As the court below added, the part of the above registration in the name of the defendants was based on the anti-social act in which the defendants actively participated in the embezzlement or breach of trust of the above non-party 2. Thus, the plaintiffs' assertion that the part of the above registration exceeds the defendants' inheritance shares in the above registration without subrogation of the above non-party 2 does not conflict with the res judicata effect of the recognition protocol (see Supreme Court Decision 87Meu777, Feb. 23, 198). Further, it is possible to seek cancellation of the above registration part which is the cause of invalidation only to exercise the right of claim for removal of interference based on ownership. The plaintiffs cannot exercise the right of claim for removal of interference based on ownership because the registered name concerning the part of the plaintiff's inheritance shares in the real estate of this case does not belong to the above non-party 2, the title trustee, before it goes beyond the plaintiffs in the future. Thus, it cannot be viewed that the above part of the registration can not be claimed for removal of interference based on ownership without a direct subrogation of the title trustee.

Nevertheless, the court below's reasoning that the plaintiffs' primary claim seeking cancellation of ownership transfer registration corresponding to the plaintiffs' shares in inheritance among the registrations in the names of the defendants with respect to the real estate of this case against the defendants is erroneous in the misapprehension of the legal principles of title trust and the right to claim removal of disturbance based on ownership, which affected the conclusion of the judgment. Accordingly, there is a reason to point this out.

3. Therefore, the lower judgment is reversed and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeong Jong-ho (Presiding Justice)