2011Na4081 Registration of Transfer of Ownership of Automobiles

person

Gangwon 00

Changwon-si, Jinwon-si

Appellants

Stock Company

Chang-gu, Gyeong-nam

Busan District of Service

Representative Director 100

Changwon District Court Decision 2010Kadan3556 decided March 8, 2011

March 21, 2012

April 4, 2012

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

A. On October 25, 2010, the Defendant received KRW 2,919,042 from the Plaintiff at the same time, and simultaneously implement the procedure for registration of transfer of ownership on each of the vehicles listed in the separate sheet to the Plaintiff, which was caused by the termination of the entrustment management contract.

B. The plaintiff's remaining claims are dismissed.

2. 1/10 of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim and incidental appeal

The judgment of the court of first instance is modified as follows. With respect to each motor vehicle listed in the separate sheet (hereinafter referred to as "each motor vehicle of this case"), the defendant will implement the procedure for the registration of transfer of ownership on the ground of the date of delivery of a copy of the complaint of this case and the termination of the entrusted management

2. Purport of appeal

The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the revocation shall be dismissed.

1. Termination of a motor vehicle entrustment management contract.

A. A. On May 1995 and July 2008, the Plaintiff and the Defendant shall own the ownership of each of the instant automobiles as the Defendant and shall externally vest in the ownership, operation, and management rights. However, in the inside of the Plaintiff, upon being entrusted with the independent operation and management rights of each of the instant automobiles by the Defendant, entered into a consignment management contract with the Defendant that pays KRW 220,000 to the Defendant as management expenses each month (hereinafter “instant contract”). (b) The Defendant completed the ownership transfer registration in the name of the Defendant for each of the instant automobiles in accordance with the instant contract.

C. Meanwhile, pursuant to Article 3(4) of the Trucking Transport Business Act as amended by Act No. 7100 on January 20, 2004 and Article 3 of the Enforcement Decree of the same Act, it was possible to operate an individual trucking transport business as one trucking transport business. In particular, as a result, when a local owner owner operator prior to the amendment of the same Act is able to terminate the entrustment management contract for trucking vehicles and run an individual trucking transport business, the Plaintiff declared that the contract of this case is terminated by the delivery of a copy of the complaint of this case to the Defendant on October 25, 2010. The copy of the complaint of this case was served on the Defendant on October 25, 2010.

[Ground of Recognition] The facts without dispute, Gap evidence Nos. 1 and 2 (including additional numbers), the whole purport of the pleadings;

According to the above facts of recognition, the instant contract is a form of contract in which the title trust and the delegation elements are combined, and the Plaintiff, who is in the position of the title truster and both parties, unilaterally terminate the instant contract, regardless of the contract term, and may recover full ownership in and outside the country with respect to each of the instant automobiles. Therefore, the instant contract was lawfully terminated on October 25, 2010, on which the copy of the complaint of this case containing the Plaintiff’s expression of intent to terminate the contract was delivered to the Defendant, barring special circumstances, the Defendant is liable to implement the transfer registration procedure for each of the instant automobiles to the Plaintiff on the grounds of the termination of the

3. Judgment on the defendant's assertion

(a) Claims for payment, such as management expenses and taxes and public charges;

1) First, the Defendant asserts that the procedure for registration of transfer of ownership cannot be implemented until the Plaintiff received management fees in proportion to KRW 297,000 per month until the transfer of ownership is registered with respect to the instant automobiles, including the management fees in arrears, KRW 3,661,010, and the taxes and public charges incurred by the Plaintiff while operating each of the instant automobiles, and each of the instant automobiles in the future.

2) We examine the case where: (a) while a branch owner continues to operate a trucking transport business by continuously operating a truck using a copy, such as the trucking transport business of a party into which the branch owner owns the remaining vehicle even after the termination of the instant contract; (b) the branch owner obtained unjust enrichment equivalent to the management expenses agreed upon by the branch owner; and (c) if there is an administrative fine imposed on the branch owner in relation to the operation of the vehicle during the period of the branch owner’s maintenance of the contract, it should be settled. It is reasonable to view that the branch owner’s obligation to return unjust enrichment equivalent to the above branch owner’s payment and the obligation to register the transfer of ownership to the branch owner of the land of the branch owner is in a concurrent performance relationship under the principle of equity; (d) since the branch owner seeks performance of the transfer of ownership registration procedure for the branch owner’s 20th entry into the trucking transport business after the completion of the branch entry into the trucking transport business, it is reasonable for the branch owner to have continued to perform the transfer registration procedure for the period of entry into the port.

3) As to the instant case, the following facts are recognized in full view of the entries in the evidence Nos. 7 and 8 and the purport of the entire pleadings and arguments, either of the parties to the dispute, or of the following facts

Even after the delivery of a duplicate of the complaint in this case to the Defendant, the Plaintiff continued to operate the trucking transport business by using the Defendant’s name of registration of trucking transport business until March 21, 2012. The Plaintiff’s unpaid management expenses as of March 31, 201 are KRW 327,00, and the amount equivalent to the management expenses incurred from April 1, 201 to March 21, 2012 is KRW 2,569,032 (=220,000 + KRW 220,000 + KRW 220,000 + below KRW 21/31,00). However, the Plaintiff asserted that the management expenses were increased to KRW 297,00 per month, but there was insufficient evidence to acknowledge that the unpaid management expenses were paid to the Defendant as otherwise alleged by the Defendant, as of March 31, 2011.

Meanwhile, as of March 21, 2012, the Plaintiff is obligated to pay to the Defendant the tax and public charges of KRW 253,000 ( KRW 18,00 + environmental improvement charges of KRW 135,00 + administrative fines of KRW 100,00). According to the above facts of recognition, the Plaintiff, as of March 21, 2012, as of March 21, 2012, totaling KRW 2,919,042 [2,66,000 + KRW 2,569,00 + KRW 22,569,000 + KRW 229,990 + KRW 253,000 + public charges and public charges].

Therefore, the defendant's defense is justified within the scope of KRW 2,919,042, and the exceeding part is without merit.

B. Claim for return of unjust enrichment against infringement of transportation business rights

1) Next, the defendant asserts that when the transfer registration of ownership on each of the instant vehicles is completed to the plaintiff, the defendant's right to permit the transportation business has been infringed. On the other hand, the defendant is entitled to receive compensation of KRW 12,800,000 per truck under the name of transportation business from the Ministry of Land, Transport and Maritime Affairs, and thus, the plaintiff should return the above defendant's losses to the plaintiff in

2) However, even if the Defendant’s permitted number of freight trucking services has decreased to that degree due to the implementation of the procedure for registration of transfer of ownership in the name of the Plaintiff with respect to each of the instant automobiles, it cannot be deemed that the Plaintiff infringed the Defendant’s right to permission for trucking transport services, or obtained profits without any legal grounds, and thereby inflicted damage on the Defendant.

Therefore, the defendant's above assertion is without merit.

4. Conclusion

Therefore, the Defendant received KRW 2,919,042 from the Plaintiff at the same time, and at the same time, is obligated to implement the procedure for ownership transfer registration for each of the instant automobiles on October 25, 2010. As such, the Plaintiff’s claim is justified within the scope of the above recognition, and the remainder of the claim shall be dismissed as it is without merit. Since the judgment of the first instance is unreasonable, it is so unfair that the Defendant’s appeal and the Plaintiff’s incidental appeal are partially accepted, and the judgment of the first instance court is modified, and it is so decided as per Disposition.

The presiding judge and the deputy judge;

Judges Kim Young-ju

Judges Kim Gin-ju