(영문) 부산고등법원 창원재판부 2016.11.9. 선고 2016누28 판결

2. The Defendant’s disposition of imposition of KRW 604,907,200 for compelling the performance imposed on the Plaintiff on October 15, 2012 is revoked.

3. All costs of the lawsuit shall be borne by the defendant.

Purport of claim and appeal

The same shall apply to the order.

Reasons

1. Details of the disposition;

The following facts can be acknowledged by taking into account the following facts: Gap evidence 1-1-3, Gap evidence 4-1-3, Gap evidence 5-1-38, Gap evidence 7-1-41, Eul evidence 3-2 and the whole purport of the arguments.

A. On December 2003, the Defendant publicly announced that four districts including B district 152,000 meters are being promoted as prospective housing site development areas according to the increase in housing demand.

B. The Plaintiff is a corporation that is engaged in civil engineering and construction business, etc., and as to the above B district, made a proposal to designate an urban development zone with respect to the land of 96,264 square meters, which is part of 212,157 square meters of the total area of 141 square meters in Jinju-si, the Plaintiff purchased each real estate listed in the separate sheet No. 1 (hereinafter referred to as “instant land”) from March 2004 to September 2007 from its owner in the name of D, E, F, and G (hereinafter referred to as “D, etc.”), and completed the registration of ownership transfer with respect to the instant land.

C. On May 17, 2010, the Defendant notified the Commissioner of the Gwangju Regional Tax Office of the violation of the Plaintiff’s Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”). On July 27, 2010, the Defendant issued a disposition imposing a penalty surcharge of KRW 1,212,918,40 in accordance with the standard market price [Attachment Table] in accordance with Article 3-2 of the Real Estate Real Name Act and Article 3-2 of the Enforcement Decree of the same Act on the ground that the Plaintiff violated the obligation to register a real estate owner under a title trust agreement to the Plaintiff. On April 21, 2011, the Plaintiff filed a lawsuit seeking revocation of the disposition of imposition of a penalty surcharge, but the judgment dismissing the Plaintiff’s claim on April 21, 201 (Seoul District Court Decision 2010Gu3808), and the Plaintiff’s appeal became final and conclusive on July 27, 2011).

D. Based on the provisions of Article 6(1) and (2) of the Real Estate Real Name Act, on September 20, 2012, the Defendant issued a disposition imposing KRW 604,907,200, which is 10/100 of the appraised value of the instant land, as a non-performance penalty (hereinafter “instant disposition”) on the ground that the Plaintiff had been imposed a penalty on the Plaintiff on September 20, 2012 on the ground that the Plaintiff did not register the instant land in its name within one year from the day when the judgment of revocation of the disposition imposing the penalty

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

For the following reasons, the instant disposition based on the premise that the Plaintiff is liable to register the actual name is unlawful.

1) The Plaintiff concluded a contract title trust agreement with D, etc. with respect to the purchase thereof, and completed the registration of ownership transfer in the name of D, etc., and at the time of the purchase, the seller of the instant land was unaware of the existence of the said contract title trust agreement. Therefore, since the change of real right to the instant land is valid, the Plaintiff is not obliged to register the instant land in its own name pursuant to the proviso of Article 6(1) of the Act

2) Even if the seller knew of the contract title trust agreement at the time of the purchase, in such a case, the change in real rights becomes null and void, and the ownership of the instant land remains to the seller. As such, the Plaintiff, the title truster, has no right to seek the registration of ownership transfer concerning the instant land against the title trustee D or the seller, and thus, cannot be registered in

3) In addition, since the land category of this case is a farmland as a whole or a paddy field, it is legally impossible for the Plaintiff, not an agricultural corporation, to register the ownership of the instant land.

4) Therefore, the Plaintiff’s failure to register the instant land in its own name falls under the proviso of Article 6(1) of the Real Estate Real Name Act (hereinafter “Real Estate Real Name Act”) or under the proviso of Article 4(2) of the Real Estate Real Name Act, and thus, the Plaintiff is not obligated to register the instant land in its own name.

B. Relevant statutes

Attached Form 2 shall be as listed in attached Table 2.

C. Determination

1) Form of a title trust agreement concluded by the Plaintiff with D, etc.

The following circumstances revealed by the facts acknowledged earlier, namely, ① the Plaintiff proposed the designation of the instant project zone to the Defendant and purchased the instant land in order to be designated as an implementer; ② during that process, the Plaintiff entered into a sales contract with the seller of the instant land in the name of a related party, such as directors, etc., such as the Plaintiff, even though the actual owner was the Plaintiff, and completed the registration of ownership transfer in the name of D, etc.; ③ A, etc., who is a related party, such as the Plaintiff’s director, etc., with the intent of later transferring the Plaintiff’s ownership of the instant land, concluded a sales contract with the seller and completed the registration of ownership transfer in the name of the Plaintiff. In light of the fact that D, etc., which is delegated with the Plaintiff as a related party, such as the Plaintiff’s director, etc., concluded the sales contract with the seller and the title trustee as above, it is reasonable to deem

2) Whether the seller of the instant land knew of the above title trust agreement at the time of sale

The seller of the instant land is admitted as evidence that the seller was unaware of the above title trust agreement at the time of sale, and there was a confirmation (No. 6-1 through 18) that some of the seller of the instant land prepared by the seller, but each of the aforementioned confirmation documents is difficult to believe it as it is in light of the time, process and form of preparation, and there is no other evidence to acknowledge the Plaintiff’s assertion.

Rather, as seen earlier, the Defendant announced that 4 districts including 152,00 square meters were to be developed as housing sites according to the Plaintiff’s increase in demand for housing around December, 203, and the following circumstances acknowledged by the purport of evidence Nos. 5-3 through 13, evidence Nos. 17-1 through 23, and evidence Nos. 7-1 and 2-2 of this case’s land purchase. In other words, the Plaintiff’s land was adjoining to Hwon at the time of the sale of this case’s land, and most of the buyers of this case’s land were 1, J, K, and L with the address of the Plaintiff at the time of the sale of this case’s land, and the Plaintiff’s sale of this case’s land under the name of Jin-si’s land, which was located in the name of 3,000-si, which was located in the name of 4,000-si.

3) Whether the seller bears the duty of real name registration by the Plaintiff, who is the title truster, with respect to the sale of the instant land, when the title truster

A) (1) The Real Estate Real Name Act prohibits a title trustee from registering his/her real right to real estate under the name of the title trustee pursuant to the title trust agreement (Article 3(1)), and imposes penalty surcharges on a title truster who violates the Act (Article 5(1)1). In addition, Article 6(1) of the Real Estate Real Name Act provides that “any person on whom a penalty surcharge is imposed under Article 5(1)1 shall, without delay, register the real right to the relevant real estate in his/her own name: Provided, That the same shall not apply to cases falling under the proviso to Article 4(2), and where there is any justifiable reason for not being registered under his/her own name, the real right shall be registered under his/her own name without delay after the said reason ceases to exist.” Article 4(2) proviso of the Real Estate Real Name Act provides that “If the title trustee becomes one of the parties to a contract to acquire the real

Furthermore, Article 6(2) of the Real Estate Real Name Act provides that where the above obligation of registration is violated, the amount equivalent to 10/100 of the appraised value of the real estate shall be imposed at the time when one year passes from the date the penalty is imposed, and the amount equivalent to 20/100 of the appraised value of the real estate shall be imposed as the enforcement fine, respectively.

(2) In full view of the contents, structure, etc. of the Real Estate Real Name Act, not only imposes a penalty on the title truster who violates Article 3(1) but also imposes a duty to register the real right to the relevant real estate in his/her name on the title truster, and impose a charge for compelling compliance if the real right to the relevant real estate is violated, the said Act imposes psychological pressure on the title truster, thereby indirectly compelling the title truster to resolve the inconsistency between the name of the registration and the substantive legal relationship caused by the violation, thereby eliminating the state of illegality and ensuring the effectiveness of the Real Estate Real Name Act.

(3) If a title truster and a title trustee have entered into a so-called contract title trust agreement and completed the registration of ownership transfer of the pertinent real estate in the name of the title trustee in accordance with the said contract while knowing the title trust agreement between the title truster and the title trustee, the registration of ownership transfer in the name of the title trustee is null and void under the main sentence of Article 4(2) of the Real Estate Real Name Act, and the sales contract entered into between the seller and the title trustee is ex officio null and void. As such, the ownership of the pertinent real estate remains in the owner who entered into the sales contract, and the title truster is not allowed to file a claim against the owner for the registration of ownership transfer of the relevant real estate (see, e.g., Supreme Court Decision

Inasmuch as both a title trust agreement and a change in real rights under Article 4 of the Real Estate Real Name Act are null and void in the title trust of the seller’s bad will, imposing a charge for compelling performance on the title truster on the ground that the title truster did not register a real right to the relevant real estate in his/her name even if the title truster did not have the right to claim the registration of transfer against the owner of the relevant real estate, it is difficult to deem that the charge for compelling performance accords with the institutional purport of the enforcement fine prescribed in Article 6 of the Real Estate Real Name Act.

(4) Therefore, the Plaintiff’s aforementioned assertion is with merit. As long as the Plaintiff’s assertion on this part is well-grounded, the instant disposition on a different premise is unlawful even if not examining the Plaintiff’s assertion.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance shall be revoked on the grounds of its conclusion, and it shall be so decided as per Disposition by the plaintiff's claim of this case.