[1] Whether a person, who entered into a real right agreement with a title truster on real estate, only if he/she entered into a real right agreement with the title trustee, constitutes “third party” under Article 4(3) of the Act on the Registration of Real Estate under Actual Titleholder’s Name (negative), and whether such a person can assert that the registration is valid as a registration consistent with the substantive relationship (affirmative)

[2] Court's explanation and cadastral duty as to legal matters

[1] The "third party" under Article 4 (3) of the Act on the Registration of Real Estate under Actual Titleholder's Name refers to a person who has a new interest with the title trustee on the basis that the title trustee is a real right holder. On the contrary hand, a person who entered into a contract to acquire a real right to real estate with the title truster and only received only the title of the registration from the title trustee does not constitute a third party under Article 4 (3) of the aforesaid Act, and thus, is not entitled to assert the validity of his/her registration made based on the invalid title trust registration based on the same provision, but the said person's assertion that the registration is valid as a registration consistent

[2] In a case where a party’s assertion is clearly excessive due to negligence or misunderstanding, or where the party’s assertion is not clear or incomplete or contradictory from a legal point of view, the court shall actively exercise its right of explanation and give the party an opportunity to state his/her opinion. If a judgment based on a legal point of view where the party was unable to expect at all, thereby causing the party to a sacrifies, the court is unlawful as it fails to perform its duty of explanation or intellectual duty, and thereby is unlawful.

[1] Article 4(3) of the Act on the Registration of Real Estate under Actual Titleholder’s Name / [2] Article 136(1) and (4) of the Civil Procedure Act

[1] Supreme Court Decision 2002Da48771 Decided August 30, 2004 (Gong2004Ha, 1589) Supreme Court Decision 2005Da34667, 34674 Decided November 10, 2005 (Gong2005Ha, 1961) / [2] Supreme Court Decision 2001Da11055 Decided January 25, 2002 (Gong2002Sang, 559) Supreme Court Decision 2004Da37676 Decided November 10, 205 (Gong2005Ha, 1950) Supreme Court Decision 205Da640334 Decided April 27, 2007

Plaintiff (Attorney Park Young-chul et al., Counsel for plaintiff-appellant)

Defendant

Daegu District Court Decision 2008Na3389 Decided May 29, 2008

The judgment below is reversed, and the case is remanded to the Daegu District Court Panel Division.

The grounds of appeal are examined.

1. The third party referred to in Article 4 (3) of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”) means a person who has a new interest with him/her on the basis of being a real right holder. On the other hand, a person who entered into a contract with a title truster to acquire a real right to real estate and only received only the title of the registration from the title trustee does not constitute a third party under the above provision of the law. Thus, although the validity of his/her registration completed on the ground of an invalid title trust registration under Article 4 (3) of the same Act cannot be asserted under Article 4 (3) of the same Act, it can be argued that such person’s registration is valid as a registration consistent with an actual relation (see, e.g., Supreme Court Decision 2002Da4871, Aug. 30, 2004).

Meanwhile, in a case where a party’s assertion is clearly excessive due to negligence or misunderstanding, or where the party’s assertion is not clear or incomplete or contradictory from a legal point of view, the court shall actively exercise its right of explanation and give the party an opportunity to state his/her opinion. If a judgment based on a legal point of view that the party had not been able to expect at all, thereby going against the party, it is unlawful that the party failed to perform its duty of explanation or cadastral obligation and failed to conduct a proper examination (see Supreme Court Decisions 2001Da11055, Jan. 25, 2002; 2005Da64033, Apr. 27, 2007, etc.).

2. According to the records, the plaintiff sought the implementation of the procedure for ownership transfer registration based on the provisional registration of this case, and the plaintiff asserted that "the non-party 1 and the non-party 2 (hereinafter "non-party 1, etc.") constructed the building of this case in the complaint of this case and the preparatory documents dated April 23, 2008 (record No. 270 pages, etc.) and registered the ownership transfer registration under the name of the defendant. The non-party 3 agreed that the building of this case was transferred to the non-party 1, etc. in lieu of the repayment of loan claims, and completed the provisional registration to preserve the right to claim ownership transfer registration on the same day, and the plaintiff transferred the right to claim ownership transfer registration from the non-party 3 and the non-party 3 did not constitute the non-party 3's right to claim ownership transfer registration based on the provisional registration of this case and the plaintiff's right to claim ownership transfer registration of this case's provisional registration of this case's title trustee and the non-party 3's right to claim for provisional registration.

Nevertheless, the court below rejected the plaintiff's claim on the ground that the non-party 3 or the plaintiff entered into a contract with the non-party 1, the title truster, and agreed only on the completion of the registration from the defendant who is the title trustee, and therefore cannot be deemed to be a third party as referred to in Article 4 (3) of the Real Estate Real Name Act. The court below's measure is erroneous in not exercising the right of explanation properly and not giving the parties an opportunity to state their opinions on legal matters, and it has affected the conclusion of the judgment.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)