Plaintiff (Law Firm Nam River, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Defendant (Attorney Choi Im-soo et al., Counsel for defendant-appellant)

January 15, 2009

Seoul Central District Court Decision 2006Gadan379297 Decided June 11, 2008

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant will implement the procedure for the registration of ownership transfer on the ground of an agreement made on November 27, 1990 with respect to the portion of 50/1,130 of the 3,786 square meters in Sinsan-si (number 1 omitted) in Busan-si.

1. Basic facts

A. On April 1, 1990, the Defendant’s parents Nonparty 1 and 2, an agent of the Defendant, entered into a sales contract with the Defendant’s name of KRW 290,000,000,000,000,000,000,000,000 as the Plaintiff’s brokerage of the Plaintiff, which was owned by Nonparty 3 as an individual of real estate. On the same day, Nonparty 4, an agent of the Defendant, entered into a sales contract with the Defendant for purchase of KRW 30,00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000.

B. On November 27, 1990, the Plaintiff: (a) on the Defendant’s parent on November 27, 1990, the above mother’s land had no ownership transfer registration in the Defendant’s future; and (b) Nonparty 3 had another land in the Dong-dong (Seoul-gun, Chungcheongnam-gun, Chungcheongnam-do); (c) on the ground that ownership transfer registration is possible in the Defendant’s future, the land in the new Dong-dong will bring about the new Dong-dong land; (d) on the ground that the above mother’s land would bring about 630 square meters out of the above mother’s land (number 1 omitted) 3,786 square meters (hereinafter “the instant land”). In addition, the Plaintiff concluded an agreement with the Defendant’s parent on the registration of ownership transfer under the Defendant’s name; (1), 500 square meters of the shares purchased by the Plaintiff; and (530 square meters of the shares purchased by the Defendant; and (b) concluded the agreement with the Plaintiff and the Defendant’s parent on behalf of the Plaintiff.

C. According to the above agreement dated November 27, 1990, the sales contract for the whole land of this case was concluded between the non-party 3 and the plaintiff (hereinafter "the sales contract of this case"). The plaintiff completed the registration of ownership transfer under the defendant's sole name as to the whole land of this case around December 1990 (However, in the register, the date of receipt was April 21, 1987, and the cause of registration was stated differently from each fact on November 7, 1986).

[Reasons for Recognition: Facts without dispute, Gap evidence 1, Eul evidence 1, Eul evidence 2, Eul evidence 5-1, 2, Eul evidence 7-7-1, 2, Eul evidence 8, Eul evidence 9-7, 12, 16, and 18, the testimony of non-party 1 and 5, and the purport of the whole pleadings]

2. The plaintiff's assertion

A. The Plaintiff and the Defendant purchased the instant land from Nonparty 3 on November 27, 1990, and agreed to complete the registration of ownership transfer as to the entire land of this case under the Defendant’s sole name. On the other hand, the Plaintiff and the Defendant did not cooperate with the Plaintiff in the registration of ownership transfer as to the entire land of this case even if the Defendant completed the registration of ownership transfer as to the entire land of this case, they concluded a sales contract in the form that the Defendant sells the Plaintiff’s share to the Plaintiff on November 7, 1992. Accordingly, the Defendant is obligated to implement the registration of ownership transfer as to the Plaintiff’s share of 500/1,130 of the instant land of this case on November 27, 1990 or on November 7, 1992.

B. Meanwhile, the agreement between the Plaintiff and the Defendant on November 27, 1990 constitutes a title trust agreement. The agreement between the Plaintiff and the Defendant falls under the title trust agreement, and even if the agreement on title trust was null and void pursuant to Articles 4(1) and 11 of the Real Estate Real Name Act by failing to complete the Plaintiff’s actual name registration within the grace period under the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”) after completing the registration of ownership transfer under the said title trust agreement, the Defendant made unjust enrichment of the Plaintiff’s share equivalent to 500/1,130 of the Plaintiff’s share out of the instant land. Accordingly, the Defendant is obligated to implement the registration procedure for ownership transfer with respect to share 500/1,130 of the instant land as unjust enrichment return to the Plaintiff.

3. Determination

A. Determination as to a claim based on the self-agreement dated November 27, 1990

According to the above facts, the contents of the agreement dated November 27, 1990 are jointly purchased from the owner by sharing the purchase price with the plaintiff and the defendant, and the plaintiff's share is 500/1,130, and the defendant's share is 630/1,130. On the other hand, if the plaintiff wishes to complete the registration of ownership transfer concerning the whole land of this case under the defendant's name, it is a title trust agreement between the plaintiff and the defendant. Therefore, it is a title trust agreement between the plaintiff and the defendant that seeks the registration of ownership transfer under the agreement on November 27, 1990. Thus, it is ultimately a claim for the registration of ownership transfer on the ground of termination of the above title trust agreement. However, as such agreement becomes null and void pursuant to Article 4 (1) of the Real Estate Real Name Act, a title truster's claim for the registration of ownership transfer cannot be made on the ground of cancellation of the registration of ownership transfer under Article 11 of the same Act (see Supreme Court Decision 98Da19697, Jul. 1, 19997).

B. Determination as to a claim based on the contract of November 7, 1992

Next, as to the assertion that the plaintiff and the defendant entered into a contract with the plaintiff to sell the plaintiff's share among the land of this case on November 7, 1992, the plaintiff's claim is without merit, since the plaintiff and the defendant did not have any other evidence to acknowledge the authenticity. Thus, the plaintiff's claim is without merit.

C. Determination on a claim for return of unjust enrichment due to invalidity of a title trust agreement

Contract title trust refers to a case where a truster directly entrusts a trustee to purchase real estate from a seller and completes the registration immediately in the future of the trustee, or where a truster purchases real estate from a seller and concludes a sales contract with the name of a purchaser under the sales contract as a trustee according to the internal agreement with the trustee, and the registration is made in the future of the trustee.

According to the above facts, the contract of this case was concluded under the title trust agreement between the parties when the plaintiff purchased the land of this case from the seller and entered into a sales contract with the plaintiff's share (500/1,130) among the above land as the defendant and its registration was made in the future of the defendant. There is no special circumstance to deem that the seller of this case's land was aware that the above share (50/130/130) registered in the future of the defendant was owned by the plaintiff. Accordingly, the above contract of title trust was formed under the title trust agreement of the seller as the bona fide seller, and upon the expiration of the grace period stipulated in Article 11 of the Real Estate Real Name Act, the defendant acquired full ownership of the whole land of this case on July 1, 1996. The plaintiff was entitled to claim the return of unjust enrichment from the plaintiff's share (500/1,130) among the land of this case against the defendant on the same day. The above right to claim the return of unjust enrichment from the plaintiff on July 16, 20196.

On the other hand, the Plaintiff asserted to the effect that the Plaintiff continued possession and cultivation of the land by means of filing a lawsuit against Nonparty 6, 7, etc. from the time of purchase of the land in this case until now, the extinctive prescription of the right to claim restitution of unjust enrichment is not in progress. However, such assertion is contrary to the legislative intent of the Real Estate Real Name Act to ensure that the right to real estate should be satisfied as soon as possible with the substantive relationship, and that an evasion of law and an illegal act arising from title trust are prevented. As such, in the above case, it would accord with the purport of the extinctive prescription system by applying the ten-year extinctive prescription, regardless of whether or not the title truster occupies the land in this case, to promptly determine the legal relationship and to make the title holder and the right holder coincide with it.

Ultimately, since the claim for return of unjust enrichment due to the invalidity of a title trust agreement has expired, the plaintiff's above claim is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance with the same conclusion is just, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Kim Jong-won (Presiding Judge)