The invalidity of a title trust agreement shall not be set up against the third party.

A third party with opposing power referred to in Article 4 (3) of the Real Estate Real Name Act refers to a person who has a new interest with a trustee on the basis of being a real right holder, including not only a person who has acquired a real right, such as ownership or mortgage, but also a seizure or provisional seizure creditor, and not a third party's good faith or bad faith.

2012 Gohap 21594 Declaration of Consent

KimAA et al.

MaB 2 others

February 27, 2013

April 17, 2013

1. The plaintiffs' lawsuits against the defendant Young-gu Busan Metropolitan City;

A. As to each real estate listed in the separate sheet Nos. 1, 2, and 3, the part demanding the declaration of consent to the registration of cancellation of transfer of ownership completed under No. 18398, May 16, 2006, which was completed on May 16, 2006

B. As to the real estate listed in paragraph (4) of the attached list, the part of the request for declaration of consent with respect to the registration of cancellation of ownership transfer registration completed on April 21, 2006 by the same registry office shall be dismissed, respectively.

2. The plaintiffs' remaining claims are dismissed.

3. The costs of lawsuit are assessed against the plaintiffs.

1. With respect to each real estate listed in Schedule 1, 2, 3, and 1:

(1) As to the registration of cancellation of ownership transfer registration completed on November 19, 2007 by the Busan Busan Busan District Court, Busan District Court, Busan District Court, the Republic of Korea declared its intention of each acceptance, with respect to the registration of cancellation of ownership transfer registration completed on November 19, 2007

(2) As to the registration of cancellation of ownership transfer registration completed on May 16, 2006 by the Busan District Court of Busan District Court No. 18398, Defendant CB, Youngdo-gu Busan Metropolitan City, and the Republic of Korea will express their intent for each acceptance.

2. As to the real estate stated in Attachment List No. 4

Defendant CB, Youngdo-gu Busan Metropolitan City, and Korea, Busan District Court, Busan District Court, and Busan District Court, the Busan District Court, made a declaration of intention to each accept with respect to the cancellation registration of transfer of ownership completed by No. 15255 on April 21, 2006.

1. Basic facts

The following facts shall not be disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings in each entry of Gap evidence of subparagraphs 1 through 4 (including each number; hereinafter the same shall apply):

(a) The developments leading to the purchase of each of the instant land by the regularCC;

1) On November 19, 2004, JungCC and SunF purchased each real estate listed in [Attachment Nos. 1, 2, and 3 (hereinafter “the instant real estate”) from KimD, KimEE and in [Attachment List Nos. 1, 2, and 3] and 4,813 square meters in Busan Young-gu OOdong, Busan, for a price of KRW 000,000,000. However, on December 15, 2004, the FF gave up its buyer’s status under the above sales contract, thereby becoming the sole purchaser under the above sales contract.

2) On November 24, 2004, JungG purchased the real estate listed in paragraph (4) of the attached Table from KimE (hereinafter referred to as "land of this case", and all of the real estate listed in the attached list as "each of the land of this case" and the real estate listed in the attached list as "each of the land of this case" and the price of 3,042 square meters in Busan Young-do, Busan. On January 26, 2005, JungG purchased the land of this case from Jung-gu, Busan and thereby became the purchaser of each of the land of this case and the land of this case 4,813 square meters in Busan, 000, 000, 3,042 square meters in total (hereinafter referred to as "each of the land of this case, etc. of this case").

B. Agreement between the plaintiffs and JungCC

1) On January 2005, if the Plaintiffs invested 000 won in total with the purchase price for each of the instant lands, etc., the Plaintiffs and JungCC agreed to the Plaintiffs on the registration of ownership transfer for each of the above lands at the intervals of 1/4. Accordingly, the Plaintiffs paid 00 won to JungCC around January 24, 2005.

2) After December 16, 2005, JungCC did not accept the transfer registration of shares with respect to each of the instant land, etc. from the plaintiffs pursuant to the above agreement. The plaintiffs reached an agreement on December 16, 2005 on the following: ① The land of this case is the joint name of YH, ASEAN, and the plaintiffs; ② the area of 4,813 square meters prior to 000,000,000, and 3,042 square meters prior to 00,000,000,000 square meters, respectively, under the name of Y; ③ selling each of the instant land, etc.; ③ 60% out of the purchase price is 60% of the purchase price, and the remainder 40% is divided into Y.

(c) the registration of title trust in the future of HaH, and the registration of seizure and provisional seizure based thereon;

1) However, in accordance with the title trust (hereinafter “title trust”) with respect to the entire land of this case to Hah, one of its own arches without implementing the above agreement on the registration of the transfer, the Busan District Court, Busan District Court No. 18398 (hereinafter “the first registration”) received on May 16, 2006 with respect to the land of this case No. 18398 (hereinafter “the first registration”). As to the land of this case No. 4, the registration of the ownership transfer was completed on April 21, 2006 with the same registry office No. 15255 (hereinafter “the second registration”).

2) As to each of the instant land based on the registration for the transfer of ownership in the name of HaH

The registration of seizure and provisional seizure was completed as follows:

∎이 사건 제1, 2, 3토지(이 사건 제1등기 관련)

• Provisional attachment No. 22203 received on June 15, 2006 by Busan District Court Central District Court [Defendant CBB(name before the opening of the name is FF)]

• Attachment No. 32240 of the receipt of September 11, 2006 (holder Busan Metropolitan City)

• Seizure No. 17157 of the receipt of June 7, 2007 (the country of right holder)

∎이 사건 제4토지(이 사건 제2등기 관련)

•Resan District Court of Busan District on June 15, 2006 provisional attachment No. 22203 (creditor F) received on June 15, 2006

• Attachment No. 28402 of the receipt of August 8, 2006 (holder Busan Metropolitan City)

• Seizure No. 17157 of the receipt of June 7, 2007 (the country of right holder)

(d) the transfer registration of ownership in the future of the second limited liability company of the agricultural company and each seizure registration based thereon;

1) On November 16, 2007, JeongCC entered into a contract with the second limited company of the Agricultural Company of the Agricultural Company of the Republic of Korea (hereinafter referred to as the "Agricultural Company II") under which it is the representative of HaH and sold the land of the first, second, and third to II of the Agricultural Company of the Republic of Korea. On November 19, 2007, Busan District Court of Busan, Busan, the registration of ownership transfer was completed in the second future of the Agricultural Company II of the Agricultural Company of the Republic of Korea (hereinafter referred to as the "each registration of the instant case").

2) The registration of transfer of ownership in the second name of an agricultural company was based on the registration of transfer of ownership in the second name, with respect to the land of this case Nos. 1, 2, and 3, the registration of seizure in the Republic of Korea was completed as follows:

• Busan District Court of Busan District on March 13, 2008 No. 6994 (right holder Busan Metropolitan City Young-gu)

• Attachment No. 29529 of the receipt of September 27, 2011 (the country of right holder)

E. Details of the relevant judgment

Prior to the instant case, the Plaintiffs filed a lawsuit against HaH et al. seeking the cancellation registration of 1 and 2 of the instant case as Busan District Court Decision 2007Gahap15021, and the instant lawsuit was concluded with the content that “Ha Jong-H et al., in the appellate court (Seoul High Court Decision 2010Na996) on September 3, 2010,” “Seoul EE and KimD implement the procedure for cancellation registration of 1 and 2 of the instant case.”

2) In addition, the plaintiffs filed a lawsuit against Section II, etc. seeking the cancellation registration of Section 3 in the instant case. On January 12, 2011, the appellate court of the said lawsuit (Seoul High Court 2009Na10829) rendered a judgment with the purport that "Agri company II is implementing the procedure for cancellation registration of Section 3 in the instant case, on the ground that the purchaser of the instant land from JungCC does not fall under a third party under Article 4 (3) of the Act on the Registration of Real Estate under Actual Titleholder's Name (hereinafter "Real Estate Real Name Act"), and the said judgment was dismissed on June 30, 201 (Supreme Court Decision 201Da22887) and became final and conclusive on July 6, 2011 (hereinafter "the instant judgment and the Busan High Court 2010Na96)."

2. Main Safety Determination

ex officio, this case’s registration of cancellation of the registration Nos. 1 and 2 of this case’s lawsuit is an unlawful lawsuit against a person who is not the party to the lawsuit, and thus, against a person who is not the party to the lawsuit, the registration of cancellation of each of the registration of this case’s case’s registration is lawful. The Plaintiffs should be cancelled in accordance with the relevant judgment. The Defendants asserted that they are interested in the registration of seizure and provisional seizure based on the above registration, and that they have a duty to accept the registration of cancellation, and that they have a duty to accept the registration of this case’s registration. The lawsuit seeking cancellation of the registration against a person who is not the party to the lawsuit, or a third party who is not the party to the registration, is illegal as it is against a person who is not the party to the registration (see, e.g., Supreme Court Decision 92Da10173, 92Da10180, Jul. 28, 192).

3. Judgment on the merits

A. Determination on the cause of the claim

According to the main text of Article 4(1) and (2) of the Real Estate Real Name Act, a title trust agreement is null and void, and any change in real rights to real estate made by a registration under a title trust agreement is null and void. According to the above facts, under the above facts of recognition, JeongCC has completed the title trust registration of each of the instant land to Hah HH, which is ASEAN, and the Agricultural Company II knowingly purchased the instant 1, 2, and 3 land from JungCC and did not constitute 43 third parties under Article 4(1) of the Real Estate Real Name Act due to the completion of the instant 3 registration. Therefore, each of the instant registrations should be cancelled as the registration invalidation of the cause, and the Defendants, who made the seizure or provisional seizure registration based on the above registration, have the duty to express their consent, unless there is any special reason.

B. Determination as to the defendants' assertion

As to this, the Defendants asserted that there is no obligation to express their consent on the title trust of this case as a third party with opposing power over the title trust of this case under Article 4(3) of the Real Estate Real Name Act. The third party under Article 4(3) of the Real Estate Real Name Act refers to a person who has a new interest relationship with the trustee on the basis that the trustee is a real right holder. This includes not only the person who has acquired the ownership or mortgage, but also the seizure or provisional seizure creditor, and not the third party has any good faith and bad faith (see, e.g., Supreme Court Decision 9Da56529, Mar. 28, 2000). According to the above facts, the Defendants are those who completed the seizure or provisional seizure or the registration based on each registration of this case made in title trust of this case and completed the seizure or provisional seizure, and the above defense of the Defendants is justified. Meanwhile, the Plaintiffs' assertion against the title truster under Article 4(3) of the Real Estate Real Name Act does not constitute a creditor under Article 34(3) of the Real Estate Real Name Act.

4. Conclusion

Therefore, among the plaintiffs' lawsuits in this case, the part of the plaintiffs' claim for the declaration of consent with respect to the cancellation registration of the registration Nos. 1 and 2 of this case against the defendant Young-gu Busan Metropolitan City, Busan Metropolitan City among the lawsuits in this case is unlawful and dismissed, and the remaining claims are without merit