Plaintiff

Defendant 1 and 3

September 21, 2007

Busan District Court Decision 2006Da60867 Delivered on December 26, 2006

1. The part against Defendant 4 Co., Ltd. in the judgment of the court of first instance shall be revoked.

2. Defendant 4 Co., Ltd. shall execute the registration procedure for transfer of ownership on the ground of sale on August 23, 1994 to the Plaintiff.

3. The remaining appeals by the Plaintiff against the Defendants are all dismissed.

4. The costs of appeal arising between the Plaintiff and Defendant 4 are assessed against the Plaintiff, and the costs of appeal arising between the Plaintiff and the remaining Defendants are assessed against the Plaintiff.

1. Revocation of a judgment of the first instance;

2. It is confirmed that the real estate listed in the separate sheet (hereinafter “instant real estate”) is owned by Defendant 4 Co., Ltd.

3. As to the instant real property, the Plaintiff:

A. Defendant 1 Co., Ltd.: (a) the registration procedure for cancellation of registration of preservation of ownership completed by the Changwon District Court No. 9580 of May 21, 2004; (b) the registration procedure for cancellation of registration of preservation of ownership

B. Defendant 2: (a) each procedure for registration of cancellation of the registration of the decision on commencement of voluntary auction completed under No. 899 on January 18, 2006, which was completed as of June 28, 2004 by the same registry office No. 12196;

C. Defendant 3: (a) the procedure for the registration of the provisional registration of the right to claim a transfer of ownership, which was completed on March 7, 2006 by the same registry office as of March 7, 2006; and (b) the procedure for the registration of the cancellation of the right to claim a transfer of ownership, which was completed on April 17, 2006 by

D. Defendant 4 Co., Ltd. shall carry out the registration procedure for transfer of ownership on August 23, 1994, respectively.

1. Determination as to the plaintiff's claim against defendant 4 corporation

The fact that the Plaintiff and the Defendant 4 Co., Ltd. entered into an apartment sale contract with the price of KRW 74,880,000 for the instant real estate on August 23, 1994 and paid the price in full on the day is without dispute between the Plaintiff and the Defendant. According to the above fact of recognition, the above Defendant is obligated to implement the procedure for ownership transfer registration for the instant real estate on August 23, 1994 with respect to the Plaintiff (the Plaintiff appears to have sought confirmation that the instant real estate was owned by the above Defendant, but it is not acknowledged that the said Defendant did not dispute about this part, and thus, it is not separately determined with respect to the Plaintiff’s claim).

2. Determination as to the plaintiff's remaining Defendants' claims

(a) Quotation of judgment of the first instance;

This court's explanation about the basic facts is the same as the corresponding part of the judgment of the court of first instance, and thus, it is citing it in accordance with the main sentence of Article 420 of the Civil Procedure Act.

B. The plaintiff's assertion on the purport of the claim

The Plaintiff, on August 23, 1994, purchased the instant real estate from Defendant 4 Co., Ltd. as payment in lieu of KRW 74,880,00,00 for investments in the existing construction fund. The instant real estate is owned by the said Defendant as it was originally acquired at once, regardless of its completion on around 1994, and it is owned by the said Defendant regardless of its registration for preservation. Therefore, the registration for preservation of ownership completed in the name of Defendant 1 Co., Ltd. is invalid. The registration for preservation of ownership completed in the name of Defendant 2 and 3 should be cancelled all by the registration for invalidation completed in the registration for preservation of Defendant 1 Co., Ltd., which is null and void as above. Thus, as the subrogation creditor of Defendant 4 Co., Ltd., sought confirmation of ownership of the said Defendant as stated in the purport of the claim, and seek cancellation

C. Determination

(1) According to the statements in Gap evidence Nos. 14, 27, 29, and 30, as the plaintiff's assertion, it is acknowledged that the defendant 4 corporation had occupied a large number of occupants even though it had been constructed considerably to operate the above apartment including the above real estate in around 1994 and had not been approved for use, and there is room to regard that the above defendant had already acquired the ownership as an independent building under social norms at that time by maintaining the form and structure of the building. However, in the case where unregistered real estate was transferred before transfer, if the registration conforms to the actual legal relationship, the registration cannot be deemed null and void (see, e.g., Supreme Court Decision 83Meu152, Jan. 24, 1984). As seen above, since the defendant 1 corporation acquired all assets and liabilities related to the construction of the above apartment house including the above real estate from defendant 4 and completed the construction after obtaining approval for change of the ownership, the plaintiff's real estate ownership registration should not be presumed to have been made under the title of the above defendant 1 corporation.

(2) In addition, the Plaintiff’s transfer and acquisition contract between Defendant 4 corporation and Defendant 1 corporation on April 14, 2001 was concluded by deceiving Defendant 1 corporation by manipulating the current status of sale and supply, or by deceiving Defendant 4 corporation due to lack of financing capacity, and thus, Defendant 1 corporation was not able to carry out an investment agreement under the above transfer and acquisition contract. The above transfer and acquisition contract is void as it was concluded without the consent of Plaintiff 4 corporation, Nonparty 2, and Defendant 3. The above transfer and acquisition contract is invalid as it was concluded without the consent of the Plaintiff 4 corporation at the time of the above transfer and acquisition, and the above transfer and acquisition contract was invalidated because it did not fulfill the conditions for approval of the change in the housing construction project plan, which was approved by the head of Gun on January 5, 2002. However, it is difficult to acknowledge that the above transfer and acquisition contract was effective due to the lack of any evidence to prove that there was no other reasons for the Plaintiff’s transfer and acquisition (including the above number No. 1). 20.

(3) Therefore, the Plaintiff’s confirmation and claim for performance against Defendant 1, 2, and 3, which were sought on the premise that the pertinent real estate was owned by Defendant 4 and that the above registration of preservation of ownership in Defendant 1’s name was null and void, was based on the premise that the registration of preservation of ownership in the name of Defendant 1

3. Conclusion

Therefore, the plaintiff's claim against the defendant 4 corporation is accepted on the ground of its reason, and all of the remaining claims against the defendants are dismissed on the ground of its ground. Since the part against the defendant 4 corporation among the judgment of the court of first instance is unfair on the ground of its conclusion, it is revoked, and the above defendant order the plaintiff to implement the above procedure for the transfer registration of ownership, while the plaintiff's appeal against the remaining defendants is dismissed on the ground of its ground, and it is so decided

[Attachment List omitted]

Judges Yoon Tae-tae (Presiding Judge)