(영문) 부산고등법원 2015.10.15.선고 2015나50156 판결

2. Upon a claim added at the trial, the Defendant’s compulsory execution against G based on the executory payment order of the District Court No. 2013 tea 4404 claim against G is denied on the basis of the executory payment order of the Corporation’s claim against G.

3. This Court revokes the compulsory stay of execution on June 10, 2015 with respect to the case of a request for the suspension of compulsory execution (2015 Chicago505).

4. The costs of appeal shall be borne by the Plaintiff, and the costs of appeal incurred in addition to the claims in the trial shall be borne by the Defendant.

Purport of claim and appeal

1. Purport of claim

The Defendant, based on the executory order for payment of construction cost claim No. 2013j4404 against G, shall not be subject to compulsory execution against the real estate stated in the attached Table No. 1 and compulsory execution against the real estate listed in the attached Table No. 2 of the attached Table No. 2 (the Plaintiff extended the claim in the trial).

2. Purport of appeal

The judgment of the court of first instance shall be revoked. The defendant shall not be subject to compulsory execution against the real estate listed in paragraph (1) of the attached Table No. 1 based on the executory payment order of the claim for construction cost of the Ulsan District Court 2013j404 against G.

Reasons

1. Basic facts

A. Conclusion of a sales contract

1) On October 2012, with the consent of G, the Plaintiff agreed to purchase the real estate listed in the attached Table 1 (referred to as “instant land”) from H and the purchaser, and to sell the real estate as G.

2) According to the above agreement, the Plaintiff remitted to H KRW 20 million around October 26, 2012, and KRW 10 million around October 29, 2012, and paid the purchase price in full by acquiring the obligation of H’s loans to H Y 95 million. Around November 8, 2012, the Plaintiff entered into a sales contract with H and the instant land with the purchaser G, seller H, and H, KRW 120 million (hereinafter “the instant sales contract”); based on the above sales contract, the Plaintiff completed the ownership transfer registration (hereinafter “ownership transfer registration”).

3) The Plaintiff holds a certificate of right to registration of the instant land, and bears the registration expenses, such as those related to the said sale, and the expenses related to the development and utilization of groundwater of the instant land.

B. New construction of the instant building

1) Around October 2012, the Plaintiff agreed with the Defendant, who is a construction business entity, to newly construct the instant building on the instant land. On March 18, 2013, the Defendant drafted a construction contract agreement between G and the subcontractor, who is the owner of the instant land, and the contractor, as the Defendant, to build a building listed in attached Table 2 (hereinafter referred to as “instant building”) on the ground of the instant building on the land at KRW 200,00,000 (excluding value-added tax).

2) Around May 2013, the Plaintiff was granted a building permit for the instant building construction with G as the owner of the building, and the Defendant was paid expenses, etc. necessary for the preparation for the construction from May 2013 to start the said new building construction work.

3) On June 27, 2013, the Defendant drafted a modified contract under which the total floor area of the instant construction contract, walls structure, toilets number, windows, etc. are modified and the construction cost is increased to KRW 255,00,000 (excluding value-added tax) (hereinafter “instant modified contract”).

4) By September 2013, the Defendant and subcontractors, including J, proceeded with the parts of the structural construction of the instant building among the new construction works of the building.

5) On September 7, 2013, the Defendant agreed to suspend construction work with the Plaintiff, and written a written agreement on the settlement of accounts between G and G, setting forth KRW 168,270,00, which sets forth the amount of settlement of accounts as KRW 168,270 (hereinafter “each of the instant agreements”).

6) Since then, the Plaintiff had the J perform the said construction, and the J completed the construction of the instant building upon receiving a direct payment of the construction cost from the Plaintiff.

C. Compulsory execution against the instant land and building

1) The Defendant filed a payment order against G for the payment of KRW 168,270,00 for the settlement of the official sale price under each of the instant notes with the Ulsan District Court Decision 2013 tea404, and damages for delay thereof (hereinafter “instant payment order”) and the said payment order was finalized on October 19, 2013.

2) On October 8, 2013, the Defendant provisionally attached the instant land to Ulsan District Court 2013Kahap804, and applied for a compulsory auction with the title of execution for the instant payment order. On November 5, 2013, the Defendant received a ruling to commence the auction as the Ulsan District Court 2013 Mata20122 on the instant land. On January 9, 2014, the Defendant received a ruling to commence the auction as the Ulsan District Court 2013 Mata20122 on the instant building.

3) Meanwhile, on January 10, 2014, the registration of preservation of ownership of the instant building was completed on January 10, 2014 with respect to the instant building’s ownership G upon the commission of the entry registration following the compulsory decision of commencement of auction.

D. Related cases

1) On December 17, 2013, on the ground that the ownership transfer registration of the instant building in the name of G was completed by title trust, the Plaintiff filed a lawsuit against G to cancel the ownership transfer registration, filed a lawsuit against seller H seeking the registration of ownership transfer under the instant sales contract (Seoul District Court Decision 2013Da35508), and rendered a judgment accepting all Plaintiff’s claims on August 19, 2014, and the judgment became final and conclusive on September 25, 2014. On December 17, 2014, on the ground that the Plaintiff acquired the instant building in the name of G at the Plaintiff’s expense, and filed a lawsuit against G seeking the procedure for changing the name of the owner of the instant building and for cancelling the registration of ownership transfer on the ground that the Plaintiff acquired the building in the instant case at the Plaintiff’s expense (the Daegu District Court Decision 2014Da5594, the main lawsuit), 2015Ga5858, May 28, 2015).

2) On the other hand, on April 21, 2014, the Plaintiff filed a complaint with the Defendant and G with the purport that the true owner of the instant land was well aware that he/she was the Plaintiff, in collusion, to the effect that he/she would confirm the instant order based on the false contract price claim and apply for a compulsory auction on the instant land, thereby taking the disposition of non-prosecution against the Defendant and G on September 5, 2014.

[Reasons for Recognition] A without dispute, Gap evidence Nos. 1 through 22 (if there are additional numbers, each number Nos. 1 through 17; hereinafter the same shall apply), Eul evidence Nos. 1 through 17, witness J of the first instance court, the first instance court, and witness G of the first instance court, the results of the plaintiff principal questioning by the court of the first instance, the whole purport of the pleadings (the plaintiff's evidence Nos. 1, 4, 7-2, 3, 10, 11, 13, 17-2, 3, 10 of the evidence Nos. 1, 4, 7-2, 10 of the evidence No. 1, 7-2, 3, and 10 of the defendant's seal are affixed, the authenticity is presumed to have been established, and the remaining evidence No. 11, 13, 17 of the court of the first instance, the plaintiff's assertion that the plaintiff's appeal is without merit.

2. The parties' assertion

A. The plaintiff

1) The Plaintiff purchased the instant land from H and title trust only with the registration title to G. As such, the registration of ownership transfer in the name of G on the instant land is null and void pursuant to Article 4(2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”).

2) The Plaintiff paid approximately KRW 83,00,00 as the construction cost until the discontinuance of the new construction of the instant building by the Defendant, and paid all the construction cost for the instant building. Thus, the Defendant does not have any claim for the construction cost. Nevertheless, the Defendant, in collusion with G, a title trustee to the instant land, prepared the instant construction contract and the modified contract, and filed an application for provisional attachment and compulsory auction based on the same external appearance as having the claim for the construction cost for G, and then filed an application for the provisional attachment and compulsory auction. Accordingly, the Defendant’s compulsory execution is deemed null and void, and the Defendant does not constitute a third party under Article 4(3) of the Real Estate Real Name Act.

3) As above, the Defendant did not constitute a third party who is unable to oppose the invalidity of title trust, and the ownership of the instant land was deemed to have returned to H according to the invalidity of the title trust agreement. Accordingly, the Defendant’s compulsory execution against the instant land based on the title trust agreement with G should not be permitted.

4) In addition, since the instant building was constructed at the Plaintiff’s effort and cost, and the Plaintiff acquired it at the original time, registration of preservation of ownership in the G name of the instant building is null and void. The Defendant’s enforcement against the instant building based on the executive title against G shall also be dismissed.

B. Defendant

The invalidity of title trust cannot be asserted against a third party. Since the defendant is a creditor who holds a claim for construction price against G in accordance with the construction contract, modified contract, and note entered into with G and accordingly applied for a compulsory auction under the payment order of this case, the plaintiff cannot oppose the defendant on the ground that title trust as to the land of this case is null and void.

3. Determination as to the claim on the instant land

A. Whether the invalidity of title trust can be asserted

1) A lawsuit of demurrer by a third party against a compulsory execution under Article 48 of the Civil Execution Act is sought to exclude the enforcement of a lawsuit by asserting that there is a right to prevent the transfer or delivery of the ownership and other subject matter of the execution already commenced with respect to the subject matter of the execution (see, e.g., Supreme Court Decision 2007Da7409, May 10, 2007). As such, the right which is the cause of the lawsuit ought to be set up against the execution obligee (see, e.

2) Meanwhile, according to Article 4(3) of the Real Estate Real Name Act, the invalidation of a title trust agreement and any change in the real right to real estate accompanied by the registration following the title trust agreement cannot be asserted against a third party. Here, “third party” refers to a person who directly has a new interest with the title trustee on the basis of being a real right holder. This includes not only a person who has acquired a real right, such as ownership or mortgage, but also a seizure or provisional seizure creditor, but also a bona fide person (see, e.g., Supreme Court Decision 9Da56529, Mar. 28, 200).

3) According to each of the facts acknowledged earlier, since the Plaintiff and G did not have a so-called three-party title trust agreement between the Plaintiff and G, the registration of ownership transfer in the name of G on the instant land is invalid pursuant to Article 4(1) and (2) of the Real Estate Real Name Act, and its ownership should be returned to H, the seller. However, since G, the title trustee, attached the instant land on the basis that he/she is the owner of the instant land, and the Defendant, who applied for a compulsory sale by provisional attachment, applied for a compulsory sale by a title trust, constitutes a third party that cannot be set up against the invalidity of title trust, barring any special circumstance, the Plaintiff cannot assert that the instant land price is H’s ownership.

B. Whether compulsory execution on the instant land is null and void due to an anti-social act

1) As to this, the Plaintiff, in collusion with G even though the Defendant did not have any claim against G, prepared a false contract for construction works with G, modified contract, and written notes, etc., and subsequently executed compulsory execution against the instant land upon which the instant payment order was issued, and accordingly, conducted compulsory execution. Accordingly, the Plaintiff asserts to the effect that this is invalid by anti-social acts that cannot be protected by the Act. Accordingly, the Defendant does not constitute a third party under Article 4(3) of the Non-Real Property Real Name Act.

In general, the invalidity of title trust can not be asserted against a third party, and it can not be contested against the falsity and the disguisedness of the executive title, which serves as the basis of the compulsory execution, in a lawsuit by a third party. However, if the compulsory execution is conducted by an anti-social act that cannot be protected by the Act, and thus is null and void, the owner may seek the exclusion of the execution as a lawsuit by the third party (see Supreme Court Decision 96Da14494, Jun. 14, 1996). Therefore, it is examined whether the execution of compulsory execution, such as provisional attachment and compulsory execution, against the land of this case by the defendant, constitutes anti-social act.

2) The obligor for the construction cost under the instant construction contract

In light of the following circumstances that can be acknowledged by comprehensively taking account of the overall purport of the arguments in the above facts and the evidence revealed above, i.e.,: (a) G testified to the effect that it only drafted the instant modified contract according to the Plaintiff’s instruction, and (b) the Defendant testified to the effect that it was ambiguous about the specific content of the contract; (c) the Defendant appears to have performed its business under the premise that it was a party to the instant construction contract; and (c) the Defendant stated that K, together with the Defendant, was aware of the Plaintiff as G in the relevant criminal case, in the construction contract of this case; and (d) G, a contracting party, was a party to the instant construction contract; and (e) G, as a title trustee of the instant land, was not a party to the instant construction contract, is deemed to have lent only the name for the purpose of concluding the instant construction contract, not a party to the instant construction contract. Therefore, the debtor of the construction contract of this case under the construction contract of this case, rather than G.

3) Whether compulsory execution against G was conducted by anti-social acts

Meanwhile, in light of the following circumstances, the Defendant’s enforcement of the instant land by obtaining enforcement title against G, the title holder in the form of the instant construction contract, which is not the actual debtor of the instant construction contract, constitutes a social act. In light of the following circumstances, it is insufficient to readily conclude that the Defendant’s enforcement of enforcement of the instant land in the name of G upon obtaining enforcement title against G constituted an anti-social act that cannot be protected by the law, and there is no other evidence to prove otherwise.

① In light of the fact that the instant construction contract and the instant modified contract were written on March 18, 2013, and June 27, 2013, respectively, each of them was written on March 18, 2013; the date of each written contract differs; the stamp image of the seal affixed on each written contract differs; the amount of the construction work differs; and the details of the modified construction work are specified, etc., it is difficult to view that each of the instant contracts was written by public invitation between the Defendant and G ex post facto on a false basis.

② In light of the fact that the witness G of the first instance trial and the trial court ordered the Plaintiff to prepare the instant alteration contract and the instant written statement according to the Plaintiff’s instruction or request, and the Defendant testified that the fact that the payment order was served was also known to the Plaintiff, and that K, along with the Defendant, which was carrying out the construction of the instant building, directly prepared the instant written statement in the relevant criminal case, and the Plaintiff’s husband was also the husband at the time of the formation of the instant written statement, it is difficult to deem that the instant alteration contract and the instant written statement were written against the Plaintiff’s will, or that it was written in terms of expression of intention or false misrepresentation.

③ The Plaintiff asserted to the effect that the Defendant did not entirely perform the construction of the instant building and that J performed all the construction works. However, the Defendant subcontracted the construction of the instant building to J. In fact, even if J actually performed the construction of the instant building, it can be deemed as a result of the said subcontract, and rather, if the construction of the instant building is based on the statement, etc. in the evidence No. 13, it appears that the Defendant had been performing considerable fairness until the discontinuance of the construction.

④ The Plaintiff filed a complaint with the Defendant and G on charges of fraud, etc., but all of them were not subject to disposition of non-prosecution because it was not acknowledged that there was no suspicion, to the effect that the Plaintiff and G conspired with the Defendant for the purpose of obtaining a payment order with the payment order for the false contract price.

⑤ In order to receive the construction cost under the instant construction contract, the Defendant received a payment order from G, which was drafted according to the Plaintiff’s intent, as the contractor for the instant construction contract and the modified contract, and based on such order, deemed that it cannot be forced to execute the instant land in the name of G, based on the fact that it was not possible for the Defendant to receive the payment order against G, the nominal owner of the construction contract, and G, who is the registrant of the instant land, and applied for the instant payment order and enforced the payment order accordingly.

4) Sub-committee

Therefore, the defendant's provisional attachment and application for compulsory auction against the land of this case cannot be deemed null and void because compulsory execution, such as the defendant's application for compulsory auction, constitutes a counter-involving act. Thus, the defendant is deemed to be a third party who cannot set up against the invalidity of title trust under Article 4 (3) of the Real Estate Real Name Act. Thus, the plaintiff's assertion on a different premise is

4. Determination as to the claim on the instant building

As seen earlier, the fact that the building of this case was newly constructed at the Plaintiff’s effort and cost is identical to that of the Plaintiff, so the building of this case is original acquisition by the Plaintiff and is deemed to be owned by the Plaintiff, and the registration of preservation of rights under the name of G is null and void, and a compulsory execution against G, based on the title of G, shall not be allowed (On the other hand, since the building of this case was not registered pursuant to the title trust agreement, but the registration of preservation of ownership has been completed at the commission of the auction court, it shall not be deemed null and void, and therefore, it cannot be viewed that it cannot be set up against

5. Conclusion

Therefore, the plaintiff's claim concerning the land of this case is dismissed as it is without merit, and the claim concerning the building of this case which is estimated at the trial of the court of appeal is justified, and the judgment of the court of first instance dismissing the plaintiff's claim concerning the land of this case is just, and the plaintiff's appeal is dismissed as without merit, and the defendant's appeal is dismissed as to the building of this case upon the claim added at the trial of the court of appeal, and it is so decided as per Disposition.