Whether it is impossible to perform the duty to transfer ownership to the truster where the transfer of ownership has been made in the name of a third party after the cancellation of title trust (affirmative)

If, after the title trustee’s termination of a title trust, the real estate was sold to a third party before the recovery of the registration following the termination of the trust under the name of the title truster, and the registration of ownership transfer was completed in the name of a third party, the third party should be protected before the title truster, barring any special circumstance. Therefore, the duty of ownership transfer registration that the title trustee bears to the title truster should be deemed to be in an impossible condition

Article 548 of the Civil Act

Plaintiff

Defendant

Gwangju District Court Decision 82Na184 delivered on May 27, 1982

The judgment of the court below is reversed, and the case is remanded to the Gwangju District Court Panel Division.

The defendant's grounds of appeal are examined.

According to the reasoning of the judgment of the court below, when the compulsory auction procedure for the real estate in this case owned by the non-party was conducted, the plaintiff was awarded the above real estate under the name of the defendant and transferred it to the plaintiff's name after being awarded a successful bid (a title trust contract is concluded). The defendant participated in the auction procedure with the plaintiff's funds and completed the registration of ownership transfer based on the successful bid in the name of the defendant on August 24, 1981, and the plaintiff declared his intention to terminate the trust contract on August 24, 1981. The defendant confirmed that the plaintiff was liable for the execution of the registration of ownership transfer based on the above trust contract to the non-party on March 6, 1981, and the registration of ownership transfer under the name of the non-party is completed after the plaintiff won the judgment of the court of first instance, and in this case, the defendant's disposal disposition was made after the plaintiff won the above non-party's lawsuit against the non-party for cancellation of the registration of ownership transfer on the ground that it is invalid.

However, if a title trustee sells a real estate to a third party before the cancellation of a title trust after the cancellation of the title trust and the registration of ownership transfer was made in the name of a third party, barring any special circumstance, the third party should be protected before the title truster. Therefore, if the registration of ownership transfer was made in the name of a third party before the registration of transfer following the termination of the title trust, the title trustee's obligation to transfer ownership to the title truster shall be deemed to be in an impossible condition. In such a case, the existence of special circumstances that may not be considered as impossible, shall be decided only when there is a party's argument under the principle of pleading. Thus, even if the records were determined in this case, the defendant, who is the title trustee, had already sold the real estate in the name of the non-party, was unable to comply with the claim for the registration of ownership transfer due to the sale of the real estate in the name of the non-party. Accordingly, the court below's assertion that the above registration of auction registration in the name of the non-party cannot be viewed as unlawful, and the non-party's assertion that it was not unlawful.

Therefore, the judgment of the court below is reversed and remanded. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kang Jong-young (Presiding Justice)