Plaintiff (Law Firm Han, Attorneys Jeong Jae-chul et al., Counsel for plaintiff-appellant)

Defendant 1 and one other (Law Firm Gyeong, et al., Counsel for the defendant-appellant)

January 23, 2013

Seoul Central District Court Decision 201Gahap81379 Decided February 9, 2012

1.The judgment of the first instance shall be modified as follows:

(a) With respect to the section 233 square meters on board, which connects each point of 2, 3, 4, 5, 13, 14, and 2 of the annexed drawings among the field of 302 square meters in Gwangju-si ( Address 1 omitted) and 1196 square meters in Gwangju-si ( Address 2 omitted);

1) Defendant 1 implements the procedure for registration of cancellation of ownership transfer registration completed under No. 26645 of the receipt of July 20, 1985 to Defendant 2;

2) Defendant 2 shall execute the registration procedure for transfer of ownership on September 25, 1985 to the Plaintiff.

B. Defendant 1 shall pay to the Plaintiff 409,716,884 won and 107,210,534 won among them, 50 won per annum from April 17, 2009; 302,506,350 won per annum from January 29, 2010 to February 13, 2013; and 20% per annum from the next day to the day of full payment.

C. The plaintiff's remaining main claims against the defendants are dismissed.

2. The total costs of the lawsuit are borne by the Defendants.

3. Paragraph 1-b. above may be provisionally executed.

1. Purport of claim

A. The primary purport of the claim

1) As to the field of Gwangju City ( Address 1 omitted), 302 square meters:

A) Defendant 1 implements the procedure for registration of cancellation of ownership transfer registration completed under No. 26645 of the receipt of July 20, 1985 to Defendant 2;

B) Defendant 2 performed the registration procedure for transfer of ownership on September 25, 1985 to the Plaintiff.

2) The section 233 square meters on the ship, which connects 1196 square meters in sequence to each of the items in Annex 2, 3, 4, 5, 13, 14, and 2 in Annex 2, 3, 4, 5, 14, and 2, shall be divided into two owned by Defendant 2, and the remainder 963 square meters in addition to the above part on the ship shall be divided into two owned by Defendant

3) Defendant 2 shall implement the procedure for the registration of ownership transfer on September 25, 1985 with respect to the part of 233 square meters in the ship connecting each point of the attached Form No. 2, 3, 4, 5, 13, 14, and 2 among the 1196 square meters in Gwangju-si ( Address 2 omitted) to the Plaintiff.

4) Defendant 1 shall pay to the Plaintiff 480,379,500 won and 124,987,500 won among them, 35,392,00 won per annum from January 29, 2010 to June 24, 2011, and 20% per annum from the next day to the date of full payment.

B. First preliminary claim

1) As to the section 233 square meters on board, which connects each point of 2, 3, 4, 5, 13, 14, and 2 of the annexed Form No. 2, 3, 4, 5, 14, and 196 square meters among the field No. 302 square meters in Gwangju-si ( Address 1 omitted) and Gwangju-si ( Address 2 omitted).

A) Defendant 1 implements the procedure for registration of cancellation of ownership transfer registration completed under No. 26645 of the receipt of July 20, 1985 to Defendant 2;

B) Defendant 2 performed the registration procedure for transfer of ownership on September 25, 1985 to the Plaintiff.

2) Defendant 1 shall pay to the Plaintiff 480,379,500 won and 124,987,500 won among them, 35,392,00 won per annum from January 29, 2010 to June 24, 2011, and 20% per annum from the next day to the date of full payment.

C. Second preliminary claims

1) As to the section 233 square meters on board, which connects each point of 2, 3, 4, 5, 13, 14, and 2 of the annexed Form No. 2, 3, 4, 5, 14, and 196 square meters among the field No. 302 square meters in Gwangju-si ( Address 1 omitted) and Gwangju-si ( Address 2 omitted).

A) Defendant 1 implements the procedure for registration of cancellation of ownership transfer registration completed under No. 26645 of the receipt of July 20, 1985 to Defendant 2;

B) Defendant 2 implemented the registration procedure for transfer of ownership on the ground of sale around September 1985 to Nonparty 1 (name 3 omitted) (name 3 omitted).

2) Defendant 1 paid to the Plaintiff 480,379,50 won and 124,987,50 won among them, from April 17, 2009, from January 29 to June 24, 2011, 5% per annum from January 29, 201 to June 24, 201, and 20% per annum from June 21, 201 to June 21, 200 (the Plaintiff is the Plaintiff’s claim for change of its claim and cause of its claim, and the Plaintiff did not appear to have claimed the above part of the claim for the transfer registration against Defendant 2 and the cancellation of ownership transfer registration against Defendant 1, from January 29 to June 24, 201, from the first preliminary claim to November 21, 2012 to the date of full payment. Accordingly, the Plaintiff did not claim for additional payment from the first instance judgment to the Plaintiff’s claim for the transfer registration of ownership against Defendant 1, from the first instance judgment.

2. Purport of appeal

A. The plaintiff

The part against the plaintiff in the judgment of the first instance shall be revoked. The part against the plaintiff in the judgment shall be revoked. With respect to the share of 233/196 out of 1196 square meters in Gwangju-si ( Address 2 omitted), Defendant 1 shall perform the procedure for the cancellation of the ownership transfer registration completed on December 13, 1985 by the Suwon District Court, Sungwon-nam Branch Office, Seoul Branch Office of 26645, and Defendant 2 shall execute the procedure for the registration of ownership transfer registration for the plaintiff on September 25, 1985. Defendant 1 shall pay to the plaintiff 124,977,50 won with the amount of KRW 124,97,50 from April 17, 2009, 35,392,000 from January 29, 201 to June 24, 2011, and 20% per annum from the next day to the day of full payment.

B. The Defendants

The part against the Defendants in the judgment of the first instance is revoked, and the Plaintiff’s claim against the Defendants corresponding to the revocation part is dismissed.

1. Basic facts

(a) The details about the sale of land and the title trust in Gwangju City ( Address 2 omitted), ( Address 1 omitted);

1) around 1985, Defendant 2: (a) around Gwangju-si ( Address 2 omitted); (b) and (c) Gwangju-si ( Address 1 omitted); (b) expressed his intention to sell the land to Nonparty 3 ( Address 2 omitted); and (c) requested the sale of the land to Nonparty 1 who was known to the general public to sell the land before subdivision ( Address 2 omitted); and (d) requested Nonparty 1 to sell the land before subdivision ( Address 2 omitted); and (e) to Nonparty 1 who was aware of the real estate brokerage to sell the land to Nonparty 3, who was aware of the fact that Nonparty 3 would sell the land before subdivision ( Address 2 omitted); and (e) to Nonparty 1, who was aware of the fact that Nonparty 1 would sell the land before subdivision ( Address 2 omitted); and (e) to Nonparty 1, who was aware of the fact that Nonparty 2 would sell the land before subdivision; (e) Nonparty 1, who was aware of the fact that the sale of the previous land was omitted.

2) Nonparty 1, who decided to purchase as above, did not register the land under his name prior to the subdivision ( Address 2 omitted) and ( Address 1 omitted), and again sold the land prior to subdivision ( Address 2 omitted) to Defendant 1, and the land prior to subdivision ( Address 1 omitted) to the Plaintiff.

3) A real estate sales contract was prepared on July 2, 1985 with respect to the land ( Address 2 omitted), which was divided into KRW 50 million for the purchase price, KRW 40 million for the seller, KRW 10,400,000 for the seller, KRW 25,000,000 for the part payment on July 2, 1985 for the implementation of the above real estate sales contract, and KRW 14,60,000 for the remainder payment on the 30th of the same month (the receipt also stated that Nonparty 4 received the purchase price from Defendant 1). In addition, on September 25, 1985, the Plaintiff asserted on September 25, 1985 that the date of the sale contract of the land was 00,000 won for the purchase price of the real estate (No. 2,000,000 won for the sale price of the real estate) and the date of the sale contract was written on September 25, 1985.

4) Defendant 2 received the above purchase price through Nonparty 3, and delivered documents necessary for the registration of real estate ownership transfer. In addition, as to the land ( Address 2 omitted), Defendant 2 transferred the ownership registration under Defendant 1 on December 13, 1985 as the receipt of No. 26645 on September 25, 1985, to the Suwon District Court Gwangju District Court Gwangju District Court (Seoul District Court 2645) (hereinafter “Seoul District Court 2645), and the registration of ownership transfer was completed on July 20, 1985 with respect to the land ( Address 1 omitted) on July 20, 1985 as the registration date for the sale on September 25, 1985, without completing the registration of ownership transfer under Defendant 1’s name (hereinafter “Defendant 1’s wife”) at the Plaintiff’s request, and without completing the registration of ownership transfer under Defendant 1’s name.

5) After the registration of ownership transfer was made under Defendant 1 with respect to the land prior to subdivision ( Address 2 omitted), Defendant 1 became aware of the fact that the registration of ownership transfer was completed under Defendant 1’s name while checking the registration certificate of the ( Address 2 omitted) land prior to subdivision purchased by Defendant 1 from the Plaintiff around the middle of December 1985, Defendant 1 became aware of the fact that the ownership transfer registration was completed under Defendant 1’s name. As a result, Nonparty 5, who is the wife of Defendant 1, became aware of the fact that the ( Address 1 omitted) land prior to subdivision was registered under Defendant 1’s name. However, Nonparty 5, upon the Plaintiff’s request, consented to the registration of ownership transfer with respect to the land prior to subdivision ( Address 1 omitted) under Defendant 1’s name, without raising any objection to the above consignment to the Plaintiff, and consented to the Plaintiff through Nonparty 5 (hereinafter “title 2”).

(b) Land before subdivision (No. 1 omitted), and before subdivision (No. 2 omitted), subdivision and annexation of land;

1) On February 12, 2009, the land prior to the subdivision was divided into the area of 111 square meters in Gwangju-si (residential address 1 omitted) and the area of 225 square meters in the same Ri (residential address 4 omitted) and the area of 1111 square meters in the same Ri (residential address 1 omitted) after the subdivision was divided into the area of 302 square meters in the same Ri (residential address 1 omitted), 576 square meters in the same Ri (residential address 5 omitted), 576 square meters in the same Ri (residential address 5 omitted), and 233 square meters in the same Ri (residential address 6 omitted).

2) On February 12, 2009 and November 6, 2009, the land prior to the subdivision ( Address 2 omitted) was divided into the area of 963 square meters in Gwangju-si ( Address 2 omitted), 478 square meters in the same Ri ( Address 7 omitted), 1530 square meters in the same Ri ( Address 8 omitted), and 17 square meters in the same Ri ( Address 9 omitted), respectively.

3) As above, on May 17, 2010, the land ( Address 6 omitted) divided in Gwangju-si was combined with the land ( Address 2 omitted) divided in the same Ri as above ( Address 2 omitted) (hereinafter, each of the land finally divided is divided into: (i) land after the division; (ii) land ( Address 1 omitted); (iii) land after the division; (iv) land after the division; (vi) land after the division ( Address 5 omitted); (iv) land after the division; (vi) land after the division; (iv) land after the division; (vi) land ( Address 2 omitted); (vi) land after the division; (iv) land after the division; (vi) land after the division; and (vi) land ( Address 8 omitted); (vi) land after the division; and (vi) land ( Address 6 omitted); and (iii) land after the consolidation, combined with the land (number 3 omitted); and (vi) land (number 14 omitted; and (iii) land after the consolidation into the relevant land (number 63 omitted omitted omitted); and (iv) land.

C. Acquisition of consultation at Gwangju City and receipt of compensation from the defendant

From Defendant 1, after April 13, 2009, Gwangju City acquired land ( Address 4 omitted), and ( Address 5 omitted) land after January 19, 2010 as public land, respectively, and paid to Defendant 1 compensation of KRW 124,987,500 after April 17, 2009, compensation of KRW 35,392,000 after January 29, 201, respectively.

[Ground of recognition] A without dispute; Gap evidence Nos. 1 through 4, 8 through 10; Eul evidence Nos. 1 through 5, 7, 11, and 15; non-party 3's testimony of the first instance witness; part of Non-party 1's testimony of the first instance court; the result of the on-site inspection of the first instance court; the result of the survey and appraisal of the first instance court's non-party 7; the result of the inquiry of the first instance court's case at Gwangju; the result of the inquiry of the first instance court's case to the defendant 2;

2. Determination

A. Judgment on the main claim

1) Determination on the claim for the land after the division ( Address 1 omitted)

A) Claim against Defendant 2

(1) According to the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”), in the case of so-called three-party registered title trust, the existing title trust agreement and registration resulting therefrom are null and void upon the lapse of the grace period prescribed under the Real Estate Real Name Act, and as a result, the real estate trusted in title is returned to the seller’s ownership. As such, the seller can seek cancellation of the registration invalid. Meanwhile, the Real Estate Real Name Act still remains valid after the expiration of the grace period since the seller and the title truster did not have any provision denying the validity of the sales contract between the seller and the title truster. As such, the title truster may file a claim against the seller for registration of ownership transfer based on the sales contract (see, e.g., Supreme Court Decision 2001Da61654, Mar. 15, 2002). Here, “title title trust agreement” includes the first agreement between the transferor and the first transferee to exercise the real right to the real estate and the first transferee’s right to the real estate under the name of another person.

(2) According to the above basic facts, the non-party 1 purchased the land from the non-party 2 through the non-party 3 through the non-party 3 without completing the registration of ownership transfer in his name. However, it is reasonable to view that the real estate sales contract concluded that the non-party 3, who was requested by the non-party 2 instead of the non-party 3, was the seller, and the plaintiff was the buyer, and the plaintiff was the direct purchaser, and the registration of ownership transfer was completed in his name. Further, it is reasonable to view that the non-party 1 confirmed the registration under the name of the defendant 1 around the middle of December 1985 by seeking an understanding from the non-party 5, and that the non-party 1 confirmed the registration under the non-party 1's name. Accordingly, the non-party 2, the non-party 1, and the plaintiff confirmed the registration under the non-party 1's name around the first half of December. 1985.

Accordingly, the Defendants asserted that Defendant 2 sold the land before subdivision to Defendant 1. In full view of the purport of the entire pleadings in the statement No. 8, Defendant 1 was living abroad at the time of the sale contract, or was aware of the purchase of the land before subdivision ( Address 1 omitted) at least around the time of the sale contract, and only the land before subdivision ( Address 2 omitted) was purchased through Nonparty 5. In addition, according to the above basic facts, Defendant 2 requested the sale of the land before subdivision to ○○○ and Nonparty 3 in consecutive order, or as a de facto intermediary, sold the land before subdivision ( Address 1 omitted), and Defendant 2 appears to have not been interested with the who was the purchaser. Nonparty 3 did not think that at the time of the sale, Defendant 1 purchased the land at all at least before subdivision, and Nonparty 1 purchased the land at the time of the sale, and it seems that Nonparty 1 did not accept the Defendants’ assertion that it was against this Opinion.

(3) Therefore, the title trust relationship between the Plaintiff and Defendant 1 is a so-called three-party registered title trust, and was established by ratification of the title trust of this case around the mid-term of December 1985. However, since the title trust agreement between the Plaintiff and Defendant 1 and the change in real right to land before the division is null and void due to the lapse of the period without filing a real-name registration within the one-year grace period (within June 30, 1996) as stipulated under the Real Estate Real Name Act, the title trust agreement between the Plaintiff and Defendant 1 and the change in real-right to land before the division, Defendant 1 lost its ownership, and Defendant 2 still has the right to claim the ownership transfer registration against Defendant 2 before the division. Accordingly, Defendant 2 is obligated to perform the ownership transfer registration procedure on the land after the division of the land after the division under the agreement by the Plaintiff, Nonparty 1, and Defendant 2’s interim omission.

B) Claim against Defendant 1

As seen earlier, the title trust agreement between the Plaintiff and Defendant 1 and any change in the real right to land ( Address 1 omitted) arising therefrom were null and void, and the Plaintiff had the right to claim for ownership transfer registration regarding the land ( Address 1 omitted) before subdivision against Defendant 2. Accordingly, upon the Plaintiff’s request by subrogation, Defendant 1 is obligated to implement the procedure for cancellation of ownership transfer registration as to the land ( Address 1 omitted), which is part of the land ( Address 1 omitted), after subdivision, to Defendant 2.

2) Determination as to the claim for partition of co-owned property and ownership transfer registration as to the land which was combined ( Address 6 omitted)

A) Based on the premise that Defendant 2 and Defendant 1 co-owned land after the merger ( Address 2 omitted), the Plaintiff filed a claim for the partition of co-owned land after the merger ( Address 2 omitted), and filed a claim for the registration of ownership transfer against Defendant 2 on the land ( Address 6 omitted), and first, we examine whether Defendant 2 may file a claim for partition of land ( Address 2 omitted) which was merged against Defendant 1.

B) The co-owner's claim for partition of co-owned property should be based on the co-owner's co-ownership right, so a person who asserts that the co-owner owns a specific share of an object without claiming the co-ownership right, may only seek performance of the procedure for registration of share transfer based on the cancellation of title trust for the specific part against the person who has the share registration in trust as to that part, and may not claim a partition of co-owned property (Supreme Court Decision 88Meu10517 delivered on September 12, 198, etc.)

C) In the instant case, the Plaintiff filed a claim for the partition of co-owned property as to the ( Address 2 omitted) land after the merger, including the ( Address 6 omitted) land that was combined in subrogation of Defendant 2, on the premise that the title trust between the Plaintiff on the ( Address 1 omitted) land and Defendant 1 on the ( Address 1 omitted) land is null and void, and that the change in real rights is still null and void. Thus, Defendant 2 may file a claim against Defendant 1 for the partition of co-owned property as to the ( Address 6 omitted) land which was combined in subrogation of Defendant 2. Even after the Plaintiff’s assertion, Defendant 2 owned the combined ( Address 6 omitted) land, and Defendant 1 did not own the remaining ( Address 2 omitted) land by co-ownership. In light of the above legal principles, Defendant 2 and Defendant 1 did not have any further need to look at the Plaintiff’s assertion on the premise that the transfer registration of ownership (in case of this case, the ownership transfer registration is cancelled), and it is not possible to file a claim for partition of property.

3) Determination as to the claim for return of unjust enrichment equivalent to the compensation amount of the land after the division (No. 4 omitted), and (No. 5 omitted)

A) In a three-party registered title trust, where a title trustee disposes of real estate held in trust at will after the grace period prescribed by the Real Estate Real Name Act has expired, or where the registration of transfer has been completed in the name of a third party acquisitor due to compulsory expropriation, consultation on public land acquisition, etc., barring any special circumstance, the third acquisitor acquires the ownership effectively (Article 4(3) of the Real Estate Real Name Act). Accordingly, the seller’s obligation to transfer ownership to the title truster is impossible, and as a result, the title truster incurs loss of the right to transfer the ownership of the real estate held in trust, while the title trustee gains profits from the disposal of the real estate held in trust or the acquisition of compensation, the title trustee is obligated to return the profits to the title truster as unjust enrichment (see, e.g., Supreme Court Decision 2009Da49193, 49209, Sept. 8, 2011).

B) As seen in the instant case, the title trust agreement between the Plaintiff and Defendant 1 and any change in real rights to the land ( Address 1 omitted) arising therefrom were null and void due to the lack of real name conversion within one-year grace period as determined by the Real Estate Real Name Act (on June 30, 1996), and the Gwangju City’s land after April 13, 2009 ( Address 4 omitted), the land was acquired through consultation on January 19, 201 as public land; the land ( Address 5 omitted) after January 19, 201; the land was acquired through consultation with Defendant 1 as public land; the compensation for the land ( Address 4 omitted); the Gwangju City’s land was 124,987,50 won after April 17, 209; 305 won after January 29, 201, 3050 won after the division; and thus, the compensation amount was paid to the Plaintiff under special circumstances of 350,3509 won or delay damages paid from the above.

B. Determination as to the first preliminary claim on the land that was combined ( Address 6 omitted)

1) The plaintiff's assertion

As to the land ( Address 6 omitted) combined with the first preliminary claim, the Plaintiff filed a claim for the registration of ownership transfer against Defendant 2, and as to Defendant 1, the Plaintiff filed a claim for the cancellation of ownership transfer registration in subrogation of Defendant 2.

2) Determination

The title trust agreement and any change in real rights pertaining to the land prior to the division between the Plaintiff and Defendant 1 was both invalidated. Since the ( Address 6 omitted) land ( Address 1 omitted) which was combined on the land prior to the division was divided and re-merged into the land ( Address 2 omitted) after the division, as seen earlier, the part of the ( Address 6 omitted) land which was combined among the ( Address 2 omitted) land is equal as seen earlier, and the remaining land is owned by Defendant 2 by specifying the portion owned by Defendant 1, and is owned by the mutual title trust method. In addition, the purport of seeking cancellation registration of ownership transfer registration of the ( Address 6 omitted) land which was combined against Defendant 1 by subrogation of Defendant 2 on the part of Defendant 2 and Defendant 1 is that it would result from the termination of mutual title trust between Defendant 2 and Defendant 1. Accordingly, upon the Plaintiff’s request by subrogation of Defendant 2, Defendant 1 is obligated to perform the registration procedure for cancellation of ownership transfer. In addition, Defendant 2 is obligated to implement the registration procedure for cancellation of ownership transfer.

C. Determination as to the defendants' assertion

1) Determination as to the assertion that the Plaintiff did not purchase from Defendant 2

A) The defendants' assertion

As long as the Plaintiff did not directly purchase the land before subdivision from Defendant 2, the Plaintiff does not have a right to claim for the registration of ownership transfer against Defendant 2 ( Address 1 omitted).

B) Determination

As seen earlier, Nonparty 1 purchased the land from Defendant 2 and the Plaintiff in sequence from Nonparty 1, and Defendant 2 transferred the registration name to the Plaintiff. As such, the Defendants’ assertion on a different premise is without need to further examine.

2) Determination on the assertion that the Real Estate Real Name Act is violated

A) The defendants' assertion

At the time of the conclusion of the sale and purchase contract for the land prior to subdivision ( Address 1 omitted), the land prior to subdivision was located in the land transaction reporting area, which requires the qualification certificate for acquisition of farmland. The Plaintiff cannot complete the registration of ownership transfer for the land prior to subdivision ( Address 1 omitted) under the Plaintiff’s name, and the Plaintiff completed the registration of ownership transfer for the land prior to subdivision ( Address 1 omitted) under Defendant 1’s name for the purpose of avoiding the land transaction reporting system. Therefore, ordering the cancellation of the registration of ownership transfer under Defendant 1 for the land prior to subdivision ( Address 1 omitted) and the restoration of ownership to the Plaintiff cannot be permitted in violation of the Real Estate Real

B) Determination

In addition, there is no evidence to acknowledge the fact that the land prior to subdivision was designated as a land transaction report area around September 25, 1985 when the sales contract for the land prior to subdivision ( Address 1 omitted) was concluded, or that it was necessary to obtain the qualification for acquisition of farmland, and since the provisions on the reported area under the Act on the Utilization and Management of the National Territory belong to the governing laws and do not deny the judicial effect of the transaction contract violating the duty to report, the sale made prior to reporting under the same Act cannot be deemed null and void as a matter of course (see, e.g., Supreme Court Decision 90Da14218, Feb. 12, 1991). The defendants' above assertion is groundless.

3) Determination as to the assertion that the land was acquired through payment in lieu of the land before subdivision ( Address 1 omitted)

A) The defendants' assertion

Defendant 1 paid KRW 42,260,00 to the Plaintiff for purchase of the land located in Seosan-si around the end of 1989, but it was returned KRW 10,00,00 from the Plaintiff and received KRW 32,260,000 from the Plaintiff on around 191, but it was not paid the remainder of KRW 32,260,000. Even though it was not recognized that the payment was made in kind on or around January 196 through 1997, Defendant 1 was paid in kind to the Plaintiff on or around November 2008 through Nonparty 5, instead of Defendant 1’s share transfer registration on the land in the name of the Plaintiff prior to the division, which became effective for Defendant 1 to settle the ownership of the land in the name of the land prior to the division or registration on the ownership transfer.

B) Determination

(1) From around 196 to 197, Defendant 1’s assertion is insufficient to acknowledge this solely on the grounds that Defendant 1 paid the property tax on the land before subdivision from the Plaintiff, on the following grounds: (a) the record as to whether he received the payment in kind of the land before subdivision from the Plaintiff; (b) the record as to whether he received the payment in kind of the land before subdivision; and (c) Defendant 1 paid the property tax on the land before subdivision ( Address 1 omitted); and (d) there is no evidence to prove this otherwise.

(2) On or around January 1, 2008 or around November 2009, as to whether payment in kind or settlement was reached between the Plaintiff and Defendant 1 with respect to the land ( Address 1 omitted), there is no document on the payment in kind or settlement agreement on the land ( Address 1 omitted) before division between the Plaintiff and Defendant 1; the value of the land before division based on the officially assessed individual land price ( Address 1 omitted) is KRW 356,712,00 on January 1, 208; KRW 376,752,00 on July 1, 200; KRW 430,192,00 on Jan. 1, 2010 (No evidence No. 18); the Defendants’ assertion that the amount of the claim against the Plaintiff by Defendant 1 is insufficient to acknowledge the Defendants’ assertion that the Defendants’ evidence No. 15 was insufficient to acknowledge the Defendants’ assertion based on the above evidence No. 15 (No. 15).

(3) Therefore, the defendants' above assertion is without merit.

4) Determination on the assertion that the claim for ownership transfer registration has expired by prescription

A) The defendants' assertion

The Plaintiff’s right to claim for the transfer registration of ownership against Defendant 2 prior to the subdivision is deemed to have taken ten years of extinctive prescription as a claim for the ownership transfer registration against Defendant 2. Since it is apparent that the instant lawsuit was filed after the lapse of 10 years from September 25, 1985, which was the date when the Plaintiff could file a claim for the transfer registration of ownership against Defendant 2, the Plaintiff’s right to claim for the transfer registration of ownership against Defendant 2 expired by prescription.

B) Determination

(1) As seen earlier, the Plaintiff purchased the land before subdivision from Defendant 2 on September 25, 1985, and thus, the Plaintiff could file a claim for the registration of ownership transfer concerning the land before subdivision against Defendant 2 from September 25, 1985 to Defendant 2, and it is evident that the instant lawsuit was filed on January 21, 201, for which ten years have passed thereafter.

(2) As to this, the Plaintiff asserts that the extinctive prescription of the Plaintiff’s right to claim for ownership transfer registration against Defendant 2 does not run since the Plaintiff, who was the purchaser of the land before subdivision, occupies the land before subdivision from around 1985.

In light of the above, the prescription system is a system prescribed for the purpose of maintaining social order in which the preservation of evidence is difficult due to the lapse of a certain period of time, and the potential person on the so-called right without exercising his/her right is a system to exclude it from legal protection. Even if only one party such as delivery and registration with respect to real estate, a person who exercises his/her right with respect to that real estate can not be considered as a locked person on his/her right with respect to that real estate as a whole. Thus, in cases where a purchaser continues to possess the real estate after delivery, the extinctive prescription of his/her right to claim the transfer of ownership shall not run (Supreme Court en banc Decision 76Da148 delivered on November 6, 1976, Supreme Court Decision 9Da32175 delivered on March 18, 199).

In this case, according to the statements in Gap evidence No. 24 and non-party 2's testimony, the non-party 2, who resided in the land of the same Ri ( Address 1 omitted) neighboring the land of the same Ri ( Address 1 omitted), which was located in the ( Address 10 omitted), before the division, had obtained the plaintiff's permission from around 1985, and had paid the two sides of rice in return for the above fact. The non-party 14 was not believed in light of the testimony of the non-party 2. Accordingly, according to this, the plaintiff was indirectly occupying the land of the ( Address 1 omitted) before the division from around 1985 to the non-party 2. Thus, the prescription period of the plaintiff's right to claim the transfer registration of ownership against defendant 2 does not run.

(3) As to this, since from around 200, Defendant 1 allowed Nonparty 2 to set up a farmer’s house on the land before subdivision ( Address 1 omitted), Defendant 1 alleged that Defendant 1 indirectly occupied the land before subdivision ( Address 1 omitted) through Nonparty 2, so in light of the testimony by Nonparty 2 as seen earlier, it is not sufficient to acknowledge the fact that Nonparty 2 occupied the land before subdivision ( Address 1 omitted) with Defendant 1’s consent. In addition, since there is no evidence to acknowledge that the Plaintiff, who was indirectly occupying the land before subdivision ( Address 1 omitted), by Nonparty 2, transferred possession of the land to Defendant 1, he cannot be deemed to have lost the indirect possession through Nonparty 2.

The Defendants also asserted that, when a title trust agreement and any change in real rights arising therefrom become null and void due to the enforcement of the Real Estate Real Name Act, the title truster would recover ownership of real estate held in title trust against the title trustee. If the title truster occupied the real estate held in title trust by delivery even in a case where the title truster violated the Real Estate Real Name Act by failing to make a real name conversion even after the grace period under the Real Estate Real Name Act, and thereby protecting the rights thereof, the purport of the relevant law, such as the Real Estate Real Name Act, should be revoked. Thus, even if the Plaintiff, the title truster, occupied the land before the division, the extinctive prescription of the right to claim ownership transfer against Defendant 2, the seller

On the other hand, in a three-party registered title trust, the title truster holds the right to claim the registration of ownership transfer of the real estate held in title trust against the seller as a result of the title trust between the title truster and the title trustee’s invalidity of the change in real rights arising therefrom. The legal nature of the right to claim the registration of ownership transfer is the right to claim the registration of ownership transfer arising according to the sales contract between the seller and the title truster, and there is no ground to regard the right to claim the registration of ownership transfer as different from the right to claim the registration of ownership transfer in the sales contract unrelated to the title trust. If the title truster occupies the real estate held in accordance with the sales contract with the seller, it cannot be said that there is no legal protection because it takes possession of the real estate held in accordance with the sales contract with the seller. Therefore, even in the case where the third party

(4) Therefore, the above argument by the Defendants is without merit, and the plaintiff's above defense is with merit.

5) Determination as to the proposal for mutual aid

A) Defendant 1’s assertion

Even if Defendant 1 is liable to pay the Plaintiff the compensation for the land ( Address 4 omitted) after the division, Defendant 1 paid to the Plaintiff KRW 70,662,616 ( Address 4 omitted), with respect to the purchase price that was paid after consultation after the division of Gwangju City, KRW 17,776,966, and KRW 52,885,650 with respect to the land ( Address 4 omitted) after the division, and KRW 52,650 with respect to the above transfer income tax, etc., as to the purchase price that was paid after the division. Defendant 1 did not have any profit equivalent to the amount corresponding to the transfer income tax, etc., and thus, Defendant 1 has to deduct the amount equivalent to the above transfer income tax, etc. from unjust enrichment to be returned by Defendant 1.

B) Determination

The facts that Defendant 1 agreed on and acquired ( Address 4 omitted), ( Address 5 omitted), land after the division of Gwangju City, and that Defendant 1 paid the compensation of KRW 124,987,500 on April 17, 2009, compensation of KRW 124,987,500 on the land after the division ( Address 5 omitted), and the compensation of KRW 355,392,00 on the land after the division ( Address 5 omitted), Defendant 1 paid the amount of KRW 17,776,966 as capital gains tax, special rural development tax, resident tax, and special rural development tax, and special rural development tax, and local income tax, and the aggregate amount of KRW 52,885,662,616 on the land ( Address 5 omitted) after the division of Gwangju City at around 209, which correspond to that of the Plaintiff 1's judgment at the time of sale after the division or the fact that the Plaintiff did not clearly dispute the amount of capital gains tax at the first instance judgment.

Therefore, Defendant 1 is obligated to pay the Plaintiff compensation of KRW 124,987,50 for the land ( Address 4 omitted) after the division received on April 17, 2009 - KRW 17,776,966, 302,50 for the transfer income tax on land after the division ( Address 4 omitted), KRW 355,392,00 for the land ( Address 5 omitted), KRW 52,885,65,650 for the total amount of compensation of KRW 409,716,84, and KRW 107,2534 for the total amount of compensation for the land after the division, and KRW 35,392,00 for the total amount of compensation of KRW 52,885,650 for the land after the division, and KRW 107,210,534 for the total amount of compensation of KRW 300 per annum from the day after the division, to the day of performance 2015th of the Civil Act.

Therefore, this part of the defendant 1's assertion is with merit.

D. Sub-committee

Therefore, according to the main claim of this case, as to (1) land after division ( Address 1 omitted), Defendant 1 is obligated to register cancellation of ownership transfer registration completed on July 20, 1985 by Suwon District Court, Sung-nam Branch of Gwangju District Court, Sung-nam Branch of 2645, and Defendant 2 is obligated to perform the procedure for registration of ownership transfer for sale on September 25, 1985. Defendant 2 is obligated to perform the procedure for registration of ownership transfer for sale on September 25, 1985. Defendant 1 is obligated to perform the procedure for registration of ownership transfer for the Plaintiff 409,716,884 won and its 107,210,534 won among them, from April 17, 2009, 302,506,350 won to the Plaintiff; Defendant 2 is obligated to perform the procedure for registration of ownership transfer to the Plaintiff at the rate of 15% from the following day to February 13, 2013.

3. Conclusion

Therefore, the plaintiff's primary claim shall be accepted within the extent of the above recognition, the remaining claims shall be dismissed without merit, and the first preliminary claim shall be accepted as reasonable, and the judgment of the court of first instance shall be partially unfair, so the plaintiff's primary claim shall be partially accepted in the court of first instance, and the appeal of the first preliminary claim shall be partially accepted, and the judgment of the court of first instance shall be modified as stated in the Disposition 1.

[Attachment]

Judges Park Jong-nam (Presiding Judge)

Note 1) In light of the fact that the judicial secretary non-party 6, who handled the registration at the time of registering the ownership transfer of the land prior to subdivision, submitted the sale certificate (Evidence No. 1 and No. 26645 of July 20, 1985), "No. 1, No. 26645 of the land prior to subdivision," which is "No. 1, No. 26645 of the "No. 2645 of December 13, 1985," which is "No. 1, No. 26645 of the "No. 2645 of Dec. 13, 1985," to the Suwon District Court registry.

Note 2) Nonparty 1’s statement (No. 15) at an investigative agency contrary to the sale and purchase process of the land prior to the aforementioned subdivision ( Address 2 omitted) and the party’s personal examination result against Defendant 2 is not believed in light of the following: Nonparty 3’s testimony by the witness of the first instance trial; Nonparty 1’s partial testimony by the witness of the first instance trial; and Defendant 2’s recording recording of the statement (No. 28) by the witness of the first instance trial.