[1] In a case where the so-called three-party registration title trust agreement and the registration based on such agreement are invalidated after the grace period under the Act on the Registration of Real Estate under Actual Titleholder’s Name, whether the title truster may file a claim for the registration of transfer of ownership based on unjust enrichment with the title trustee

[2] In a case where the registration of ownership transfer has been completed in one of the inheritors due to the inheritance by agreement division as to the registration of the name of the decedent whose cause is null and void, whether another co-inheritors is liable to cancel the registration (negative)

[1] Articles 4, 11, and 12(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name; Article 103 of the Civil Act / [title trust] / [2] Articles 1013 and 1015 of the Civil Act

[1] Supreme Court Decision 2008Da55290, 55306 decided Nov. 27, 2008 (Gong2008Ha, 1782) / [2] Supreme Court Decision 88Meu5836 decided Sep. 12, 1989 (Gong1989, 1453) Supreme Court Decision 90Da8237 decided Aug. 27, 1991 (Gong191, 2410)

Plaintiff

Defendant

Suwon District Court Decision 2008Na2266 Decided October 30, 2008

The part of the judgment of the court below against the plaintiff as to the conjunctive claim shall be reversed, and that part of the case shall be remanded to the Panel Division of the District Court. The plaintiff's primary claim and the defendant's appeal shall be dismissed.

We examine the grounds of appeal.

1. Plaintiff’s ground of appeal

A. As to the main claim

In the case of the so-called three-party registered title trust, even if the title truster holds a right to claim ownership transfer registration based on the sales contract against the seller, and the title truster cannot be deemed to have suffered any loss not holding the title due to the lapse of the grace period. As such, the title truster cannot seek a registration of transfer against the title trustee, the title truster, who is the title truster, of the invalid registration, in the case of a three-party registered title trust, because the title truster cannot seek a registration of transfer due to unjust enrichment return against the title trustee (see, e.g., Supreme Court Decision 2008Da5290, 5306, Nov. 27, 2008).

The lower court determined that the instant title trust agreement between the Plaintiff and Nonparty 1 constitutes a three-party registered title trust that the Plaintiff purchased the instant land from Nonparty 2 as a party to the relevant sales contract and decided to be Nonparty 1 only in its name, and thus, the instant registration of ownership transfer under the Defendant’s name, the heir of Nonparty 1, who was based on the instant title trust agreement, shall be deemed null and void. As such, the instant registration of ownership transfer under the name of the Defendant, the heir of Nonparty 1, should also be deemed null and void. Therefore, the Plaintiff, the title truster, only has the right to claim ownership transfer registration under the sales contract against Nonparty 2, the seller, and could not seek the implementation of the procedure for the registration of ownership transfer for direct unjust enrichment against the Defendant who succeeded to the status

According to the above legal principles and the facts found by the court below, the above judgment of the court below is justified.

This part of the judgment of the court below is not erroneous in the misapprehension of legal principles as to real estate real name act and title trust as otherwise alleged in the ground of appeal.

B. As to the conjunctive claim

Article 1015 of the Civil Act provides that the division of inherited property shall be effective retroactively from the time of the commencement of the inheritance. This means that the property belonging to each co-inheritors by division is already succeeded to the person directly divided from the inheritee at the time of the commencement of the inheritance. Therefore, even if one of the co-inheritors acquires the property exceeding the inherent share of inherited property by division under Article 1013 of the Civil Act with respect to inherited property, it shall be deemed that it was succeeded to by the inheritee at the time of the commencement of the inheritance. Accordingly, if the registration of ownership transfer was made from the inheritee at the time of the commencement of the inheritance due to an agreement division and the registration of ownership transfer under the name of the inheritee at the time of the commencement of the inheritance, only the inheritor who solely inherited the property by division is obligated to cancel the registration (see, e.g., Supreme Court Decisions 8Da58369, Sept. 12, 198; 200Da389797, Jul. 31, 197).

According to the facts duly established by the court below based on its adopted evidence, the plaintiff purchased the land of this case from the non-party 2 and completed the registration of ownership transfer due to inheritance by agreement and division on January 10, 207, under the non-party 2's understanding in order to avoid the restriction on farmland ownership under the Farmland Reform Act, the non-party 1 died on January 14, 1991 and died on October 7, 2000, which is the wife's wife, the non-party 4, the non-party 5, the defendant, the non-party 6, and the non-party 7 inherited the non-party 1 at the ratio of 1/5, who is his children, but did not have any obligation to cancel the registration of ownership transfer due to the non-party 1's inheritance by the non-party 1's registration on January 14, 1991, which is contrary to the provisions of the Real Estate Real Name Act.

Nevertheless, the court below held that the registration of transfer of ownership in the name of Nonparty 1 was null and void due to the above circumstances, and held that Nonparty 1, including the defendant, had a duty to cancel the registration of transfer of ownership in the name of Nonparty 1 only based on each inheritance share on the premise that Nonparty 1's inheritors, including the defendant, jointly inherited property. Thus, the court below erred in the misapprehension of legal principles as to the division of inherited property

The ground of appeal pointing this out is with merit.

2. As to the Defendant’s ground of appeal

Examining the reasoning of the judgment below in light of the records, it is justifiable that the court below recognized that the Plaintiff entrusted only the registration name to Nonparty 1 under the understanding of Nonparty 2 in order to avoid the restriction on farmland ownership under the Farmland Reform Act while purchasing the above land from Nonparty 2.

The court below did not err in the misapprehension of legal principle of presumption, violation of logical and empirical rule, incomplete hearing, omission in judgment, etc. as otherwise alleged in the ground of appeal.

3. Conclusion

Therefore, the part of the lower judgment against the Plaintiff regarding the conjunctive claim is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s primary claim and the Defendant’s appeal are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)