[2] In a case where a title trustee, a title trustee, and a third party who borrowed the purchase price in the real estate auction procedure, completed the registration of ownership transfer under a new title trust agreement between the title truster, the title trustee, and the third party, under the final and conclusive judgment, the title trustee

[2] If the title trustee completed the registration of ownership transfer in the name of a third party designated by the title truster again pursuant to a new title trust agreement between the title truster, the title trustee, and the third party who lent the purchase price in the auction procedure, the registration of ownership transfer in the name of the third party is null and void pursuant to Article 4(2) of the above Act. As such, the third party cannot be deemed to have acquired ownership in the name of the third party or obtained profits equivalent to the purchase price, notwithstanding the registration of ownership transfer. Furthermore, even if the completion of the registration of ownership transfer in the name of the third party was based on the final and conclusive judgment of the lawsuit claiming ownership transfer against the title trustee filed by the third party, the final and conclusive judgment ordering the implementation of the registration of ownership transfer does not extend to the ownership transfer only to the existence of the right of claim for ownership transfer registration, which is a subject matter

1. Where a person who intends to purchase real estate in the real estate auction procedure obtains a decision to permit the sale under his/her name under a title trust agreement with another person and pays the purchase price in full at his/her own expense, ownership of real estate for auction purposes shall be acquired by the title holder regardless of whether the purchase price is to be borne, and a title trust agreement between the title truster and the title trustee who lends the name of the title truster who has borne the purchase price is null and void pursuant to Article 4(1) of the Act on the Registration of Real Estate under the Actual Titleholder’s Name. Thus, the title truster cannot seek a return of the real estate itself against the title trustee, and only has a right to claim a return of unjust enrichment equivalent to the purchase price provided to the title trustee (see, e.g., Supreme Court Decisions 2002Da66922, Jan. 28, 2005;

Furthermore, in such a case, if the title trustee again completed the registration of ownership transfer in the name of a third party designated by the title truster pursuant to a new title trust agreement between the title truster, the title trustee, and the third party, the registration of ownership transfer in the name of the third party is null and void pursuant to Article 4(2) of the above Act. As such, the third party cannot be deemed to have acquired the ownership of the real estate or gained profits equivalent to the purchase price thereof, notwithstanding the registration of ownership transfer. In addition, even if the third party’s completion of the registration of ownership transfer in the name of the third party is based on a final and conclusive judgment in the lawsuit claiming ownership transfer against the title trustee, the final and conclusive judgment ordering the implementation of the registration procedure for ownership transfer transfer does not affect the existence of the right to claim ownership transfer registration and do not extend to the ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership ownership, which is not the subject of the lawsuit (see, e.g., Supreme Court Decisions 86Meu1958, Mar. 24, 198; 98Da3241, Oct.

2. According to the reasoning of the lower judgment and the record, the following facts are revealed: (a) Nonparty 1, who was in arrears with national taxes, purchased the instant real estate in the real estate auction procedure in the name of Nonparty 2, and paid the purchase price in full, and completed the registration of ownership transfer in the name of Nonparty 2; (b) Nonparty 1 agreed to re-title the instant real estate with the Defendant, who is the Dong-dong, to title trust the Defendant; and (c) completed the registration of the right to claim ownership transfer of the instant real estate in the name of the Defendant upon delegation by Nonparty 2 of all authority on disposal of the instant real estate; and (d) thereafter, Nonparty 1 was sentenced to the judgment ordering Nonparty 2 to implement the principal registration procedure based on the said provisional registration in the lawsuit for ownership transfer filed against Nonparty 2

In light of the above legal principles, the non-party 2, who was the title holder of the instant real estate, acquired the ownership of the instant real estate regardless of who received the purchase price in the auction procedure, and even if the ownership transfer registration was completed in the name of the defendant by the final judgment, it was based on the invalid title trust agreement between the non-party 1 and the non-party 2, which was null and void since it was based on a new title trust agreement between the non-party 3 and the defendant, including the defendant, and the final judgment does not affect the ownership of the instant real estate. Thus, the defendant did not acquire the ownership of the instant real estate, and therefore the defendant cannot be said to have obtained unjust enrichment equivalent to the purchase

In contrast, the court below held that the defendant is obligated to return unjust enrichment equivalent to the purchase price to the non-party 1 by deeming that the defendant acquired the ownership of the real estate in this case because the non-party 2's claim for cancellation of ownership transfer registration or the claim for ownership transfer registration based on the restoration of real name is not allowed due to the res judicata of the above final and conclusive judgment. Such judgment of the court below is erroneous in the misapprehension of legal principles as to res judicata of the final and conclusive judgment, and it has affected the conclusion of the judgment.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)