[1] Whether the burden of proving the presumption of real estate registration and title trust facts is borne (=person claiming title trust registration)

[2] The time to establish the right to claim damages due to nonperformance (i.e., when actual damage occurs) and method of determining whether actual damage occurred / Whether the real estate seller’s establishment of the right to collateral security on real estate, which is the object of sale, can be deemed as having caused a loss equivalent to the secured debt amount to the purchaser solely on the fact that the real estate seller established the right to collateral security (negative), and where it can be deemed that the damage was actually

[1] Article 103 of the Civil Act / [title trust] Article 186 of the Civil Act / [2] Article 390 of the Civil Act, Article 288 of the Civil Procedure Act

[1] Supreme Court Decision 2012Da84479 Decided October 29, 2015 (Gong1998Sang, 1443) / [2] Supreme Court Decision 97Da28568 Decided April 24, 1998 (Gong1998Sang, 1443), Supreme Court Decision 97Da4760 Decided August 25, 1998 (Gong1998Ha, 2308), Supreme Court Decision 200Da53038 Decided April 8, 2003 (Gong2003Sang, 1069)

Plaintiff 1 and one other

Defendant 1 and one other (Law Firm LLC, Attorneys Song-dong et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2016Na2060219 decided January 24, 2017

1. The part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to the Seoul High Court.

2. The remaining appeals by Defendant 1 and all appeals by the Plaintiffs and Defendant 2 are dismissed.

3. The costs of appeal between the plaintiffs and the defendant 2 are assessed against each party.

The grounds of appeal are examined.

1. As to the plaintiff 2's appeal

A real estate registration is presumed to have been completed by legitimate grounds for registration from the fact that it exists formally, and a person who asserts that he/she had registered under a trust with another person shall be liable to prove the title trust (Supreme Court Decision 2012Da84479 Decided October 29, 2015).

According to the reasoning of the judgment below, in light of the circumstances stated in its reasoning, the court below determined that there is insufficient evidence to acknowledge that Defendant 1 held the title trust of each of the real estate listed in [Attachment 1] Nos. 1 through 4 of the judgment below (hereinafter “instant real estate”) to Defendant 2.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court’s aforementioned determination is acceptable. Contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine regarding title trust, or by exceeding the bounds of the principle

2. As to Defendant 1’s appeal

A. It shall be deemed to have been ordered to implement the procedure for transferring ownership;

According to the reasoning of the judgment below, the court below determined that it is difficult to view that the real estate sales contract concluded on March 28, 2008 by the plaintiffs and defendant 1 (hereinafter "the instant sales contract") concluded on March 28, 2008 was rescinded or terminated as a result of the delay of the plaintiffs' performance, and it is difficult to view that the obligation to transfer the ownership of the instant Nos. 1, 2, and 4 to the plaintiffs of defendant 1 based on the instant

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, such determination by the lower court is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on nonperformance of performance, or by failing to exhaust all necessary deliberations, thereby exceeding

B. We examine the order to pay money.

(1) The right to claim damages due to nonperformance is established when actual damage occurs, and whether actual damage occurred should be determined objectively and reasonably in light of social norms (see, e.g., Supreme Court Decisions 97Da28568, Apr. 24, 1998; 97Da4760, Aug. 25, 1998). Meanwhile, even if a seller of real estate establishes a right to collateral security with respect to a real estate, which is the subject matter of sale, the seller may extinguish the right to collateral security and transfer the ownership of the real estate to the buyer. Accordingly, the buyer may not acquire the ownership of the real estate immediately due to rescission of the contract or impossibility of performance. Accordingly, the establishment of the right to collateral security alone does not immediately cause damage equivalent to the secured amount to the buyer, and further, it should be deemed that the damage was actually caused by the buyer’s failure to pay the secured amount for the preservation of the right to claim ownership or ownership transfer of the real estate purchased by social norms. And the obligee must prove the damage arising from nonperformance.

(2) In full view of the admitted evidence, the lower court acknowledged the following facts: (a) Defendant 1 set up a right to collateral security (hereinafter “instant right to collateral security”) equivalent to KRW 45 million with respect to part of the real estate, which is the object of sale, after selling the real estate to the Plaintiffs; (b) subsequently, the said real estate was divided into the first and fourth real estate, and thus, remains in existence as the said right to collateral security (hereinafter “instant right”); and (c) as of the date of closing argument of the lower court, acknowledged the fact that the said right to collateral security

Based on the above factual basis, the lower court determined that Defendant 1 was not able to transfer the ownership of the instant real estate Nos. 1 and 2 to the Plaintiffs pursuant to the instant sales contract, and accordingly, the Plaintiffs suffered damages equivalent to the secured debt amount within the scope of the value of each of the instant real estate and the maximum debt amount of the instant mortgage, and thus, Defendant 1 was liable to compensate the Plaintiffs for damages due to the said nonperformance.

(3) However, according to the reasoning of the lower judgment, inasmuch as the Plaintiffs’ obligation to pay the remainder of the Plaintiffs in simultaneous performance relationship and Defendant 1’s obligation to transfer ownership to Defendant 1’s real estate for more than one year from the outstanding payment date stipulated in the instant sales contract is not fully fulfilled, Defendant 1 created the instant right to collateral security, and there is no evidence to deem that Defendant 1 is in a situation in which it is impossible to extinguish the instant right to collateral security due to Defendant 1’s lack of financial capability. Therefore, it is difficult to deem that the damages incurred from the creation of the instant right

Therefore, the court below erred by misapprehending the legal principles as to the occurrence of damages in the claim for damages due to nonperformance of obligation, which affected the conclusion of the judgment by failing to exhaust all necessary deliberations. Defendant 1’s ground of appeal assigning this error is with merit.

C. We examine the part on the confirmation of traffic right.

Defendant 1 did not state the grounds of appeal on this part in the petition of appeal or the appellate brief, even though Defendant 1 filed an appeal against the entire part of the judgment below against it.

3. As to the appeal by the plaintiff 1 and the defendant 2

Plaintiff 1 did not state the grounds of appeal in the petition of appeal, and did not submit the appellate brief within the submission period. Defendant 2 did not state the grounds of appeal in the petition of appeal and the appellate brief.

4. Conclusion

Therefore, the part of the judgment of the court below against Defendant 1 is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining appeals by Defendant 1 and all appeals by Defendant 2 are dismissed, and the costs of appeal between the plaintiffs and Defendant 2 are assessed against each appellant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)