2016 Doz. 109688

A

B

April 12, 2018

May 17, 2018

1. The defendant shall pay to the plaintiff 269,990,203 won with 5% interest per annum from April 11, 2014 to May 17, 2018, and 15% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. Three-minutes of litigation costs are assessed against the Defendant, and the remainder is assessed against the Plaintiff, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 420,000,000 won with 5% interest per annum from April 11, 2014 until the delivery date of the application for amendment of the claim of this case (as of March 6, 2018) and 15% interest per annum from the next day to the day of complete payment.

1. Facts of recognition;

A. On October 20, 2011, C completed the registration of ownership transfer on October 20, 201 with respect to each land listed in the separate sheet No. 1 (hereinafter “each land of this case”) to the Defendant on the grounds of sale as of October 19, 201.

B. On April 11, 2014, the Defendant completed the registration of ownership transfer for each of the instant land to D on April 7, 2014 on the grounds of sale as of April 7, 2014.

C. On December 7, 2011, the Plaintiff: (a) transferred each of the instant land to the Defendant under mutual agreement with the Defendant; (b) the Defendant has no right to sell and purchase each of the instant land; and (c) all the right to sell and purchase the instant land belongs to the Plaintiff; and (d) written a real estate sale statement stating that only the Defendant has transferred the ownership, and that the money has not been invested. (c) written a real estate sale statement (hereinafter “each of the instant notes”).

[Ground for Recognition: Facts without dispute, entries in Gap evidence 1, 2, and 21 (including paper numbers; hereinafter the same shall apply), the purport of the whole pleadings]

2. Summary of the plaintiff's assertion

A. Main assertion

(1) Since the Plaintiff purchased each of the instant lands from C and title trust between '3 parties title trust' to the Defendant, the Defendant did not dispose of each of the instant lands without the Plaintiff’s consent, based on an implied delegation agreement that transfers the instant title trust agreement or each of the instant lands to the Plaintiff, or, even if disposed of, bears the obligation to pay the purchase price to the Plaintiff. Nevertheless, the Defendant committed an illegal act that sells each of the instant lands to D without the Plaintiff’s consent in violation of such title trust agreement or delegation agreement.

(2) The Defendant disposed of each of the instant lands, thereby making it impossible for the title truster to exercise the right to claim ownership transfer registration against the Plaintiff’s seller. Thus, the Defendant’s act constitutes tort against the third party’s claim infringement.

(3) Therefore, the Defendant is obligated to pay the Plaintiff the purchase price of KRW 420 million (i.e., KRW 1.4 billion - KRW 980 million as the collateral security obligation of each of the instant lands) by compensating the Plaintiff for damages caused by a tort.

B. Preliminary assertion

The Defendant sold each of the lands of this case and obtained profits from KRW 420 million without any legal cause. The Plaintiff suffered losses from losing the right to claim ownership transfer registration of each of the lands of this case, and thus, the Defendant is obligated to pay KRW 420 million due to the return of unjust enrichment.

3. Determination

A. Judgment on the main argument

(1) The assertion of violation of delegation agreements

The legislative purport of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”) is to prevent anti-social acts, such as speculation, evasion, and evasion of laws, which abuse the real estate registration system, and to contribute to the sound development of the national economy by stabilizing real estate transaction and stabilizing real estate prices. In addition, in light of the content and attitude of the regulation on the title trust relationship under the Real Estate Real Name Act, which prohibits the registration under the name of the title trustee under a title trust agreement and imposes criminal punishment on both the title truster and the title trustee in violation, where the title truster and the title trustee are subject to criminal punishment, the title truster and the title trustee cannot be deemed to have a fiduciary relationship based on which the title truster and the title trustee are entrusted under the principle of good faith, even though the title trust agreement or the delegation agreement incidental thereto becomes null and void. Moreover, the actual consignment relationship, which may exist between the title truster and the title trustee, is merely a violation of the Act on the Registration of Real Estate under Actual Titleholder’s Name and thus, does not constitute an unlawful crime (see, e.g., Supreme Court en banc Decision 20196Do.

In accordance with the above legal principles, the title trust agreement asserted by the Plaintiff and the implied delegation agreement incidental thereto cannot be deemed as a trust relationship with a value equivalent to invalidation and protection in accordance with the Real Estate Real Name Act. Thus, even if the Defendant disposed of each of the instant land in violation of this legal principle, it cannot be deemed as a tort against the Plaintiff.

(2) Claim infringement by a third party

The illegality of a claim infringement by a third party shall be determined on an individual basis by taking into account the content of the infringing claim, the attitude of the infringing act, the intent of the infringing person, and the existence of the year. Determination should be made after careful consideration of the need to guarantee the freedom of transaction, public interest including economic and social policy factors, and the balance of interests between the parties (see, e.g., Supreme Court Decision 2005Da25021, Sept. 6, 2007).

According to the above legal principles, the Health Board, ① the Real Estate Real Name Act is subject to criminal punishment for both the title truster and the title trustee; ② the disposal of real estate by a title trustee who has received the registration of ownership transfer based on an invalid title trust agreement pursuant to Article 4(3) of the Real Estate Real Name Act is effective in cases where the title trustee disposes of real estate to a third party; ③ as seen above, the title trust agreement and implied delegation agreement asserted by the Plaintiff cannot be deemed as a new trust relationship with a value equivalent to invalidation and protection in violation of the Real Estate Real Name Act; and the content and attitude of the regulation on the title trust relationship under the Real Estate Real Name Act, even if the Defendant disposed of each of the instant land without the Plaintiff’s consent, it cannot be said that tort

(3) Sub-determination

The plaintiff's primary argument is without merit.

B. Determination as to the conjunctive assertion

(1) Return of unjust enrichment

(A) In full view of each of the evidence mentioned above-mentioned facts, Gap evidence Nos. 14, 23, 24, Eul evidence Nos. 16 to 18, and Eul's testimony, the following facts can be acknowledged.

① The Plaintiff, on his behalf, on February 15, 2009, was F representing C and the instant case.

A joint business contract for the establishment of a real estate and a welfare care facility for each land (hereinafter referred to as the "joint business contract of this case") was concluded. The joint business contract of this case decided to contribute the remaining 600 million won after deducting 600 million won of financial loans of each land of this case from 1.2 billion won, respectively, to E and C. When a corporation for the joint business is established, C completed the registration of ownership transfer of each land of this case to the above corporation.

The Plaintiff entered into a contract with F on behalf of E to purchase 1/2 shares of each of the instant lands in KRW 600 million. Of the purchase price of KRW 600 million, the Plaintiff paid KRW 350 million, plus KRW 50 million operating expenses of 30 million and office operation expenses of KRW 50 million. The remainder KRW 300 million was replaced by succeeding to 300 million out of the total amount of the collateral security obligations of each of the instant lands. The Plaintiff, on the same day, made an endorsement of KRW 200 million in face value and face value of KRW 150 million in face value of 200 million in face value of each of the instant lands in the first endorsement column of Chapter II of Promissory Notes, and made an endorsement of the Plaintiff’s name in the second endorsement column, and then made an endorsement to F.

③ On March 26, 2009, G agricultural partnership (hereinafter “instant agricultural partnership”) was established under the instant joint venture agreement, and the representative director, director E, and director F were appointed respectively.

④ On June 26, 2009, F returned promissory notes worth KRW 150 million to the Plaintiff, as the ownership of each of the instant land was not transferred to the future of the instant agricultural partnership.

In addition, F prepared a certificate that the Plaintiff invested KRW 78,394,480 to the Plaintiff on the same day.

⑤ On November 24, 2010, the Plaintiff completed the registration of provisional disposition with respect to each of the instant land upon the decision of provisional disposition prohibiting the disposal of each of the instant land as the preserved right (No. 2010Kahap394, Jeju District Court).

6) On June 27, 2011, the Plaintiff prepared a confirmation document stating that “The Plaintiff and C shall prepare a sales contract that the Plaintiff shall purchase each of the instant land.”

After that, on October 27, 201, F was dismissed from office as a director of the instant farming association, and H, the Defendant’s birth on the same day, was appointed as a director.

(B) The following circumstances revealed in the above facts, i.e., to establish C and the instant agricultural partnership on behalf of the Plaintiff, and to establish two promissory notes on behalf of the Plaintiff, but F returned one promissory note to the instant agricultural partnership on account of the lack of the registration of transfer of ownership of each of the instant land, and the Plaintiff was subjected to a provisional disposition of prohibition of disposal on each of the instant land, and the Plaintiff promised to prepare a sales contract for the purchase of each of the instant land; ② the Plaintiff and C promised to prepare a sales contract for the purchase of each of the instant land; ② the F, the agent of C, was dismissed from the director of the instant agricultural partnership and the Defendant was appointed as the Defendant’s H, and ③ the Plaintiff completed the registration of transfer of ownership of each of the instant land due to the purchase and sale, and between the Plaintiff and the Defendant, the registration was made in the name of the Defendant upon purchasing each of the instant land from C.

(C) Therefore, the Defendant sold each land of this case, which received title trust, and obtained profits equivalent to the purchase price without any legal ground. The Plaintiff suffered losses from the loss of the Plaintiff’s right to claim for ownership transfer registration, and thus, the Defendant is obligated to return the profits accrued from the sale of each land of this case to the Plaintiff as unjust enrichment

(2) Scope of unjust enrichment

Furthermore, as to the scope of unjust enrichment, comprehensively taking account of the following facts: (a) the facts charged prior to the above recognition; (b) evidence No. 17; (c) evidence No. 28; and (d) the fact-finding with respect to D; and (c) the fact-finding with respect to D’s testimony, the Defendant sold each of the instant land to D on April 7, 2014, to D, for KRW 1.48 billion; and (d) substituted for D’s acceptance of the collateral collateral obligation of each of the instant land; (c) the Defendant received the remainder of KRW 420 million from D on the same day; and (d) the Defendant’s receipt of KRW 27 and 29 alone does not interfere with the above recognition. Accordingly, the Defendant is obligated to return to the Plaintiff KRW 420 million, barring any special circumstances.

(3) The defendant's defense of offsetting

(A) The Defendant asserts against the Plaintiff that ① KRW 150,09,797 of the cost incurred with respect to each of the instant lands (i) KRW 25,780,000,000, which was paid on October 20, 201, + the amount of interest accrued from the instant land’s collateral obligation from October 21, 201 to April 8, 2014, which was paid on behalf of the Plaintiff for the interest accrued from the instant land’s collateral collateral obligation ( KRW 124,229,797), ② from November 10, 201 to August 14, 2012, the Defendant claimed that the Plaintiff was equal to the amount of KRW 231,620,200, and KRW 307,000,000, which was lent to the Plaintiff through the Defendant’s Ha and the corporate account operated by the Defendant, and that the amount of the said claim would be equal to the amount of KRW 131,620,7979.

(B) In full view of the evidence and the purport of the entire pleadings in each of the above facts admitted as evidence and evidence Nos. 1, 2, 4, 15, and 24, the Defendant paid KRW 25,780,000 with respect to each of the lands of this case on October 20, 201, when the Defendant completed the registration of ownership transfer with respect to each of the lands of this case, and ② the Defendant paid KRW 124,229,797 with respect to each of the lands of this case from October 21, 201 to April 8, 2014. As such, the Defendant’s payment of KRW 150,009,797 among the Defendant’s aforementioned arguments is with merit.

(C) However, the evidence submitted by the Defendant alone is insufficient to recognize that the Defendant lent KRW 231,620,200 to the Plaintiff from November 10, 201 to August 14, 2012, and KRW 116,770,00, respectively, from November 22, 2010 to April 12, 201, and there is no other evidence to support this. Therefore, this part of the Defendant’s assertion is without merit.

(D) Ultimately, the Plaintiff’s claim of KRW 150,09,797 among the Plaintiff’s claim for return of unjust enrichment against the Defendant and the Defendant’s claim of KRW 150,009,797 against the Plaintiff against the Plaintiff was extinguished by the set-off. Therefore, the Plaintiff’s claim for return of unjust enrichment remains more than KRW 269,90,203 (=420,000,000 - KRW 150,09,797).

C. Sub-decision

Therefore, the Defendant is obligated to dispute as to the existence and scope of the obligation to pay the amount of KRW 269,90,203 and the amount of KRW 420,000,000,000 from April 11, 2014 of the date when unjust enrichment was established with D and the Defendant is obliged to pay the Plaintiff damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act and 15% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment.

4. Conclusion

Therefore, the plaintiff's claim is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

Justices Kim Hyun-tae

Judges Jeon Jae-chul

Judges Lee Jin-ia