Plaintiff 1 and one other (Attorney Choi Young-soo et al., Counsel for the plaintiff-appellant)

Defendant 1 and 3 others (Law Firm Taedong, Attorney Lee Dong-soo, Counsel for the defendant-appellant)

October 12, 2004

Seoul Eastern District Court Decision 2001Gahap10692 Delivered on October 10, 2003

1. All appeals filed by the plaintiffs are dismissed.

2. Of the third preliminary claims added at the trial, the plaintiff's lawsuit against the defendant 2 is dismissed, and the plaintiff's remaining claims against the defendants and the remaining claims against the defendant 2 are all dismissed.

3. The appeal costs are assessed against the plaintiffs.

The judgment of the first instance shall be revoked.

1.In the first place:

A. Defendant 2, 3, and 4 undertake to Defendant 1 the procedure for the registration of ownership transfer due to the cancellation of title trust on February 19, 201 with respect to the share of 2/11 of each real estate listed in the separate sheet No. 1 list;

B. Defendant 1: The Plaintiffs

(1) With respect to the shares of 2235/5 of the real estate listed in the Schedule 1. Of the real estate listed in the Schedule 1., with respect to shares of 51/1263 of the real estate listed in the Schedule 2, with respect to shares of 51/1263 of the real estate listed in the Schedule 3. of the same Schedule, with respect to shares of 3035/6375 of the real estate listed in the Schedule 3. of the same Schedule, with respect to shares of 1901.5/39 of the real estate listed in the Schedule 4. of the same Schedule, the procedure for the registration of share ownership transfer due to the termination of title trust on the date of delivery of the request for change

(2) 5% per annum from February 19, 2001 to the date of this judgment, and 20% per annum from the following day to the date of full payment, respectively, shall be paid.

2.As the first alternative:

A. Defendant 2, 3, and 4 implement the procedure for the registration of ownership transfer on the ground of the termination of title trust as of February 19, 201 with respect to the share of 2/11 of each of the real estate listed in the separate sheet No. 1 list to Defendant 1;

B. Defendant 1: The Plaintiffs

(1) With respect to the shares of 2235/5 of the real estate listed in the Schedule 1. Of the real estate listed in the Schedule 1., with respect to shares of 51/1263 of the real estate listed in the Schedule 2, with respect to shares of 51/1263 of the real estate listed in the Schedule 3. of the same Schedule, with respect to shares of 3035/6375 of the real estate listed in the Schedule 3. of the same Schedule, with respect to shares of 1901.5/390 of the real estate listed in the Schedule 4. of the same Schedule, with respect to shares of 1/3 of the remaining real estate listed in the same Schedule, the procedure for the registration of transfer of ownership based on an agreement made on September 24, 19

(2) 5% per annum from February 19, 2001 to the date of this judgment, and 20% per annum from the following day to the date of full payment, respectively, shall be paid.

3.As the second preliminary measure:

A. Defendant 2, 3, and 4 implement the procedure for the registration of ownership transfer on the ground of the termination of title trust as of February 19, 201 with respect to the share of 2/11 of each of the real estate listed in the separate sheet No. 1 list to Defendant 1;

B. Defendant 1: The Plaintiffs

(1) With respect to the shares of 2235/5 of the real estate listed in the Schedule 1. Of the real estate listed in the Schedule 1., with respect to shares of 51/1263 of the real estate listed in the Schedule 2, with respect to shares of 51/1263 of the real estate listed in the Schedule 3. of the same Schedule, with respect to shares of 3035/6375 of the real estate listed in the Schedule 3. of the same Schedule, with respect to shares of 1901.5/39 of the real estate listed in the Schedule 4. of the same Schedule, the procedures for the registration of share ownership transfer due to the cancellation of the third claim and cause change, among the remaining real estate

(2) 5% per annum from February 19, 2001 to the date of this judgment, and 20% per annum from the following day to the date of full payment, respectively, shall be paid.

4.As the third alternative:

A. Defendant 1, 2, 3, and 4 implement the registration procedure for transfer of ownership on the ground of unjust enrichment return with respect to one-third of each of the Defendants’ respective inheritance shares listed in the separate sheet No. 2 as to each of the Defendants’ respective inheritance shares listed in the separate sheet No. 1.

B. Defendant 1, 2, 3, and 4 implement the registration procedure for transfer of ownership for each third of the Defendants’ inheritance shares in attached Form 2 with respect to each of the Defendants’ inheritance shares listed in attached Table 1 to Plaintiff 1, on the ground of unjust enrichment return;

C. Defendant 2 implements the procedure for the cancellation registration of ownership transfer registration, completed on December 24, 2003 by the Jeju District Court and the receipt (receiving number omitted) with respect to 9/11 of each share out of the real estate listed in [Attachment 1] to the Plaintiffs.

D. The Defendants shall pay to the Plaintiffs the amount of KRW 49,160,99 per annum from February 19, 2001 to the date of the instant judgment, and 20% per annum from the following day to the date of full payment (the Plaintiffs added the third preliminary claim at the trial) in accordance with the Defendants’ inheritance shares as stated in attached Form 2.

1. Facts recognized;

A. Each real estate indicated in the separate list of real estate and the building on the land of 833 square meters and its ground in Jeju-si (detailed No. 1 omitted), Jeju-si (detailed No. 2 omitted), and 542 square meters of woodland No. 542 (hereinafter “each real estate of this case”) are the land and buildings created at Jeju-si in accordance with the plan to create a coastal village development complex and, thus, the occupants decided to be subject to a stock farm management condition. From around 1970 to January 28, 1978, the Plaintiffs and Defendant 1 agreed to purchase each of the real estate of this case under the exclusive name of Plaintiff 1 and the purchaser agreed to transfer the ownership of each of the real estate of this case to the Plaintiffs and Defendant 1, who were entitled to a stock farm management condition.

B. Even after purchasing non-exclusive rights on each of the instant real estate, the Plaintiffs and Defendant 1 had Nonparty 2 continue to manage each of the instant real estate because they failed to find a person who is suitable to live and manage each of the instant real estate. Accordingly, according to Defendant 1’s proposal, Nonparty 1, the husband of Defendant 1, instead of Nonparty 2, was responsible for managing each of the instant real estate.

C. Accordingly, on August 20, 1982, Defendant 1 paid KRW 2.5 million to Nonparty 2 under the pretext of public charges, management expenses, etc. for four years required by him (the receipt was received in the name of Nonparty 3, the husband of Defendant 1) and received the transfer of each of the instant real estate, and on September 24, 1982, Defendant 1 was selected from Jeju City to replace the occupant from Nonparty 2 to Nonparty 1, and entrusted Nonparty 1 with the development and management of each of the instant real estate. Afterwards, Defendant 1 paid to Nonparty 1 the sum of KRW 13 million with the repayment of a loan to purchase each of the instant real estate, purchase of stock farm facilities, development expenses, housing, and livestock farming expenses, etc., and repaid the amount of KRW 13 million with the funds of Defendant 1514 and KRW 1950,000 with the funds of each of the instant real estate raised from the real estate.

D. Upon the repayment of the purchase price for each real estate of this case (the principal amount of KRW 557,93, interest KRW 286,896, total amount of KRW 84,829) in full, on April 11, 1986, Jeju had completed the procedure for the registration of ownership transfer of each real estate of this case (the expenses of KRW 1,381,360 at that time were borne by Defendant 1). The plaintiffs sent to Nonparty 1 a written reply to the effect that the right to each real estate of this case was denied in the name of Nonparty 1, while they knew that the ownership transfer registration was completed in the name of Nonparty 1, from March 27, 1987 to May 9, 1989, the plaintiffs sent to Nonparty 1 a written reply to the effect that the rights of the plaintiffs of this case were denied under the name of Nonparty 1.

E. After that, the non-party 1 had ownership of each of the real estate in this case provided a certain land as security to a financial institution, and neglected to manage the real estate in this case; the non-party 1 moved his registered domicile to Jeju-do in order to have the non-party 3 manage each of the real estate in this case without any particular occupation at that time; and the non-party 3 became the plaintiff and filed a lawsuit claiming the registration of transfer of ownership due to the cancellation of title trust under the Jeju District Court (Case No. 1 omitted) against the non-party 1. The non-party 1 was sentenced to the judgment in favor of the plaintiff on February 8, 1991. After the judgment became final and conclusive, the non-party 1 was sentenced to the judgment in favor of the plaintiff on February 8, 191, the non-party 1 was the non-party 1 (tax No. 1 omitted); the building (tax No. 2 omitted); the real estate No. 542 in Jeju-si; the real estate No. 3719, Jul. 19, 1969, 197. 197.

F. On March 19, 192, Nonparty 3, among each of the instant real estate, sold to Nonparty 5 the site and the building on the ground thereof (number 1 omitted); on April 29, 1995, forest land for KRW 74 million; on April 29, 1995 (number 2 omitted); on Jeju-si (number 4 omitted); on April 1, 1999, KRW 5,209 square meters (number 4-1 omitted); on April 1, 1999, KRW 1,237 square meters (number 4-2 omitted); on the aggregate of KRW 30,237 square meters (number 4-3 omitted); on the aggregate of KRW 5,237 square meters (number 4-2 omitted); on the aggregate of KRW 30,263 square meters (number 4-3 omitted); on the aggregate of KRW 93,253 square meters (number 9-13,259-29,294-19,97).

G. On January 30, 1996, the plaintiffs filed a complaint with the purport that "the real estate is jointly owned by the plaintiffs and the third parties, and the non-party 3 embezzled and embezzled the registration of insolvency by disposing of the real estate in his own name and part of it as security," the land price of each of the real estate in this case was increased due to the collapse of tourists, and the defendant 1 refused the plaintiffs' request for the transfer of shares of each of the real estate in this case and transferred the ownership of the real estate in the name of the non-party 3 as above." However, the Jeju District Prosecutors' Office accepted the change suit by the non-party 3 and rendered a disposition that was not suspected of the above complaint on October 11, 1996."

I. On May 6, 200 when Nonparty 3 died on September 30, 199, on May 6, 200, Defendant 1, 2, 3, 4, and Nonparty 6 (the non-party 6 is a woman born by the non-party 3 before the marriage with Defendant 1, and is indicated as born between the non-party 3 and Defendant 1, and the family register is entered as the family register) on the ground of inheritance, the transfer registration of ownership of each real estate listed in the separate sheet No. 1 (the non-party 13/11, the non-party 2, 3, 4, and the non-party 62/11) was completed. On February 9, 200, the defendant 1 transferred the ownership registration of each real estate listed in the separate sheet No. 201Ga3187, to his own funds and transferred the ownership of each real estate to the non-party 1/6 of the judgment to the non-party 31/16 of the judgment.

(j) After that, on December 24, 2003, the entire shares of Defendant 1, 3, and 4 concerning each of the real estate listed in the separate sheet No. 1 on December 24, 2003 were transferred to Defendant 2 on the ground of donation on December 22, 2003, each of the above real estate became a sole ownership of Defendant 2. On January 3, 2004, the entire shares of Defendant 3, 4 on each of the real estate listed in the separate sheet No. 1 on December 24, 2003 were transferred to Nonparty 4 on the ground of donation on December 24, 2003, and thus, Defendant 1 transferred to Nonparty 5/11, Defendant 2/11, and Nonparty 4 owned shares of each of the above real estate.

(k) Meanwhile, the Plaintiffs and Defendant 1 jointly purchased the real estate located in Jeju-do from Nonparty 2 in addition to each of the instant real estate in addition to the real estate in Jeju-do for the purpose of acquiring profit by resale after purchasing the real estate located in Jeju-do and obtaining profit by resale. In addition to the instant real estate, the real estate in Jeju-do is also jointly purchased such real estate as woodland located in Jeju-do North Jeju-do (detailed 6 omitted), Jeju-si (detailed 7 omitted), and the land located in front of Jeju-do (university 7 omitted). Of these, some of the real estate was sold, divided or settled profits by resale, and the remaining real estate is still

[C] Facts without any dispute, evidence 1- 3 through 16, evidence 2-1, evidence 2-1 to 3-1, evidence 2-1, evidence 3-2, evidence 2-1 to 4-1, evidence 2-1, evidence 3-2, evidence 5-1 to 4-2, evidence 2-1, evidence 2-1 to 3-1, evidence 4-2, evidence 5-1, evidence 5-2, evidence 3-1 to 4-1, evidence 2-1, evidence 5-2, evidence 3-1 to 4-1, evidence 2-1, evidence 5-2, evidence 2-1 to 3-1, evidence 5-2, evidence 2-1 to 4-1, evidence 3-2, evidence 5-1 to 4-1, respectively.

2. Judgment as to the main claim

After jointly purchasing each of the instant real estate and each of the instant real estate, the Plaintiffs trusted to Defendant 1 each of the instant real estate in the name of 1/3 shares out of each of the instant real estate. Since the instant title trust agreement is terminated upon delivery of the first claim and the application for change of cause, Defendant 1 is obligated to perform the obligation to register the ownership of each of the instant real estate listed in the separate sheet No. 1 with respect to one-third shares, and upon Defendant 1’s implied approval, Nonparty 3 sells to Nonparty 5 the land and the instant ground buildings (detailed No. 1 omitted) totaling KRW 74,66,666,00,000 for sale of each of the instant real estate and for which the implementation of the procedure for registering the ownership transfer of each of the instant real estate was impossible, and thus, Defendant 1 is obligated to pay to the Plaintiffs each of the instant real estate under the separate sheet No. 24,000,000 won to Defendant 14,000 won for the purpose of preserving the ownership transfer registration of each of each of Defendant 214.

On the other hand, even if there was a title trust agreement between the plaintiffs and defendant 1, the title truster who registered the real right to real estate under the title trust agreement prior to the enforcement of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”), and the title truster who registered the real right to real estate under the title trust agreement within the grace period of one year from the enforcement date of the Act on the Registration of Real Estate under Actual Name. If the title trust agreement is not made within the said period, the title truster cannot exercise the right to claim the registration of ownership transfer due to the termination of the title trust agreement against the title trustee (see, e.g., Supreme Court Decision 98Da43250, Dec. 11, 1998). Thus, even if there was a title trust agreement as alleged by the plaintiffs, the said title trust agreement becomes null and void upon the expiration of the grace period under the Real Estate Real Name Act, and thus, it cannot be permitted to claim the registration of ownership transfer due to the cancellation of the title trust agreement after the said grace period has expired.

3. Judgment on the first preliminary claim

The plaintiffs and defendant 1 agreed to share ownership transfer registration under the agreement of January 28, 1978 and the tenant's name on each of the real estate of this case changed from non-party 2 to non-party 1 on September 24, 1982. If each of the real estate of this case is non-party 1/3 of this case, the plaintiffs and defendant 1 agreed to share ownership transfer registration under the agreement of September 28 and September 24, 1982. Thus, the defendant 1 asserted that non-party 3's obligation to implement share transfer registration under the agreement of September 24, 1982 and the non-party 1 purchased each of the real estate of this case and the non-party 2's right to share transfer registration under the agreement of September 24, 1978 and the non-party 3's implied approval of the defendant 1's right to share transfer registration of the above 1/3 of the real estate of this case to non-party 5, the plaintiff's right to share transfer registration of the above 2616.

On the other hand, there is no clear evidence consistent with the plaintiffs' assertion that they agreed to share 1/3 shares of each of the instant real estate jointly acquired between the plaintiffs and defendant 1. Rather, according to the above facts acknowledged above, the plaintiffs and defendant 1 acquired real estate and purchased each of the instant real estate jointly with other real estate for the same purpose in order to acquire profits from the purchase of real estate after the price increase. Accordingly, the plaintiffs and the above defendant formed an association for the purpose of operating such speculative business as a partnership, and acquired the ownership of each of the instant real estate in the name of another person by mutual investment. Thus, each of the instant real estate is naturally owned by the association in accordance with the provisions of Article 271 (1) of the Civil Act. Since the property of the association is for a joint business under the association agreement, it is for the purpose of collecting shares, the association's withdrawal from the association as a method of collecting shares, or after dissolution of the association's partnership company, it cannot be acknowledged that there is no evidence of the plaintiffs' claim for distribution or transfer of the remaining real estate between the plaintiff 1 and the defendant 1's co-owned shares.

However, Defendant 1: (a) was deemed to have obtained the ownership of each of the above real estate at the time of No. 1, 7-1; (b) was transferred to Nonparty 1, 6; (c) the ownership of each of the above real estate at the time of No. 1, 1, 7, and 1, 6 were to have been transferred to Nonparty 1; (d) it appears to have asserted that each of the above real estate was owned by Defendant 1, 1, 7, and 1, 1, 7, and 6 were to have been transferred to Nonparty 1, 1, 1, 6, and 1, 7, and 1, 100 were to have been transferred to Nonparty 1, 6, on the ground that each of the above real estate was to have been transferred to Nonparty 1, 1, 6, and 1, 1982, on the ground that each of the above real estate was transferred to Nonparty 1, 6, and there was no further evidence to acknowledge that the above shares were transferred to Nonparty 1, 1, 6, 1,

4. Judgment on the second preliminary claim

As the second preliminary claim, the plaintiffs and defendant 1 acquired the ownership of each real estate of this case by their mutual investment after purchasing and resale the real estate of this case for the purpose of acquiring profits from the purchase. Since the plaintiffs and defendant 1 made a request for dissolution of the above association or withdrawal from the association by delivery of the request for modification of the purport of the third and fourth claims and the cause of the claim, the defendant 1 is obligated to pay to the plaintiffs who are union members of the above association the total amount of KRW 24,66,666 (the detailed number 1 omitted) and its ground among each of the real estate of this case sold to the non-party 5, the total sum of the purchase price of forest land of this case (the detailed number 2 omitted), divided by 1/3 of the plaintiffs and the defendant 1's right to claim for dissolution of the above association or withdrawal from the association. Thus, the defendant 1 asserts to the effect that the above defendant 1's right to claim cancellation of the ownership of each of the above real estate of this case by distribution of remaining property and settlement amount.

The facts that each of the real estate in this case is owned by the plaintiffs and defendant 1 as members of the association are as mentioned above. In this case, the plaintiffs, who are members of the association, withdraw from the association or request dissolution of the association with the dispute with the above defendant and the method of collecting their shares. If three members of the association of this case withdraw from the association of this case, the association should no longer continue to conduct liquidation procedures, but it is necessary to conduct liquidation procedures separately if there is no remaining remaining business to be handled at the time the association is dissolved and only distribution of residual property remains at the time the liquidation procedures are completed. Thus, the remaining remaining property and its value are not determined at the time of completion of liquidation procedures. Thus, it is not clear that there is no remaining remaining business to be handled by the association of this case. Thus, according to the above facts, the plaintiffs and the above association of this case are not deemed to have been disposed of at the time of sale of the real estate in this case's non-party 2 and the above association of this case's sale of the real estate in this case's non-party 4.

5. Judgment on the third preliminary claim

Since the plaintiffs completed the registration of transfer of ownership in the name of Defendant 1, 2, 3, and 4 with respect to the above real estate purchased jointly with Defendant 1, the title trust was invalidated under the Real Estate Real Name Act. Therefore, the above Defendants are obligated to implement the registration of transfer of ownership as stated in the third preliminary claim regarding the real estate stated in the separate list No. 1 with respect to the return of unjust enrichment. Nonparty 3 is obligated to perform the registration of transfer of ownership as stated in the third preliminary claim. On April 29, 195, the above Defendants were liable to compensate for damages to Nonparty 2 for the above total amount of KRW 7,40,000,000,000,000,000 won and KRW 30,000,000,000,000 won and KRW 4,000,000,000,0000,000,000 won and KRW 4,000,000,000.

On the other hand, the first preliminary claim against the Defendants against the Plaintiffs for unjust enrichment, on the premise that the title trust relationship between the Plaintiffs and Defendant 1 was established, each of the instant real estate was established, and thus, it cannot be deemed that it was jointly owned by the Defendants through Defendant 1 as co-ownership of the said three parties. Therefore, the third preliminary claim against the Defendants for unjust enrichment against the Plaintiffs for the payment of the price for disposal of part of the instant real estate or the amount received as compensation, under the presumption that the title trust relationship between the Plaintiffs and Defendant 1 was established. The third preliminary claim against the Defendants is without merit without any reason (the Defendants own each share of the instant real estate as co-ownership. Nonparty 3, as co-inheritors, bear obligations to the instant association in total, with respect to the Plaintiff’s share of KRW 147,483,00, which is co-ownership of inheritance shares, and thus, it cannot be deemed that the Defendants’ claim for the cancellation of the remaining property distribution due to dissolution between the Plaintiffs and Defendant 1 was unlawful as long as the Defendants’ claim for reimbursement of shares against each of the Plaintiff 2 and the Defendants’ claim for reimbursement of the above.

6. Conclusion

Therefore, the plaintiffs' primary and secondary conjunctive claims against the defendant 2, 3, and 4 are unlawful, and all of them are dismissed. The judgment of the court of first instance is justifiable in conclusion, and the plaintiffs' appeal is dismissed as it is without merit. The part of the claim for the performance of the procedure for the registration of cancellation against the defendant 2 among the third conjunctive claims added at the court of first instance is dismissed as it is unlawful, and the remaining claims against the defendants and the remainder against the defendant 2 are all dismissed. It is so decided as per Disposition by the assent.

[Attachment List]

Judges Kim Jong-dae (Presiding Judge)