Plaintiff 1 and two others (Law Firm LLC, Attorneys Yellow-hwa et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Kim Jong-won et al., Counsel for the defendant-appellant)

November 24, 2017

1. The Defendant shall pay to Plaintiff 1 and Plaintiff 2 21,620,375 won, 332,430,562 won, and 5% per annum from June 6, 2017 to December 15, 2017, and 15% per annum from the following day to the date of full payment.

2. The plaintiffs' remaining claims are dismissed.

3. Of the costs of lawsuit, 1/9 shall be borne by the Plaintiffs, and the remainder by the Defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 1 25,771,429 won, 255,771,429 won, 383,657,142 won, and 15% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of full payment.

1. Basic facts

(a) The relationship between the parties;

The deceased Nonparty (hereinafter “the deceased”) from around 1989 to 100, established and opened a comprehensive team of ○○ Private Teaching Institutes (former trade name: ○○○○ Private Teaching Institute; hereinafter “△△△ Private Teaching Institute”). The Plaintiff 1 and Plaintiff 2 are the deceased’s children, Plaintiff 3 are the deceased’s spouse, and the Defendant is the deceased’s children.

(b) Conclusion, merger, etc. of each sales contract;

1) Related to △△-dong, Incheon Metropolitan City (number 2 omitted) 697m2,5m2 (hereinafter “instant land 1”).

가) 피고는 소외 2와 이 사건 제1토지 중 소외 2 소유의 인천 남구 △△동 (지번 2 생략) 대 217㎡(별지 도면 표시 ㉶ 부분, 이후 ‘별지 도면 표시‘의 기재는 생략하고, 이를 ‘합병전 (지번 2 생략) 토지’라 한다) 및 그 지상건물을 550,000,000원에 매수하기로 하는 매매계약을 체결하였고, 2004. 2. 17. 위 토지 및 지상건물에 관하여 피고 명의의 소유권이전등기를 마쳤다.

나) 이 사건 제1토지 중 나머지 부분들(㉷, ㉸, ㉹ 부분)에 대해서도 1989.경부터 1996.경까지 사이에 각 매매를 원인으로 한 피고 명의의 소유권이전등기가 마쳐졌고, 이후 위 각 토지는 2004. 4. 28. 이 사건 제1토지로 합병되었다.

2) Related to △△-dong, Incheon Metropolitan City (number 3 omitted), 783.7 square meters (hereinafter “instant land 2”).

A) Of the instant land Nonparty 3 and Nonparty 2, the Defendant entered into a sales contract with Nonparty 3 to purchase KRW 135,00,000,00 of the land and the above ground buildings owned by Nonparty 3 for △△△△-dong (number 5 omitted), Nam-gu, Incheon (Woo-dong, △△-dong, 129.4m2 (hereinafter “Before the annexation”), and completed the registration of ownership transfer under the Defendant’s name on June 24, 2002.

나) 피고는 소외 4와 이 사건 제2토지 중 소외 4 소유의 인천 남구 △△동 (지번 4 생략) 대 135.9㎡(㉱, ㉴부분, 이하 ‘합병전 (지번 4 생략) 토지’라 한다) 및 그 지상건물을 188,600,000원에 매수하기로 하는 매매계약을 체결하였고, 2002. 12. 9. 위 토지 및 지상건물에 관하여 피고 명의의 소유권이전등기를 마쳤다.

다) 피고는 인천광역시 남구와 인천 남구 △△동 (지번 6 생략) 대 21.6㎡ 및 같은 동 (지번 8 생략) 대 22㎡(㉵ 부분, 인천 남구 △△동 (지번 6 생략) 대 43.6㎡로부터 분할된 토지로, 이하 각 ‘분할후 (지번 6 생략) 토지’ 및 ‘분할후 (지번 8 생략) 토지’라 한다) 중 인천광역시 남구 소유의 21.6/43.6 지분에 관한 매매계약을 체결하였고, 2003. 8. 29. 위 각 토지에 관하여 피고 명의의 소유권이전등기를 마쳤다.

라 이 사건 제2토지 중 나머지 부분들(㉵ 부분 중 22/43.6 지분, ㉳, ㉰, ㉲, ㉮ 부분)에 대해서도 1989.경부터 2003.경까지 사이에 각 매매를 원인으로 한 피고 명의의 소유권이전등기가 마쳐졌고, 이후 위 각 토지는 2003. 10. 22. 이 사건 제2토지로 합병되었다.

C. Death of the deceased and inheritance of the plaintiffs

1) On May 2010, the Deceased was diagnosed with cancer and repeated treatment and recurrence of cancer several times thereafter, and died on August 29, 2012.

2) Plaintiffs 1 and 2 inherited 2/7 shares, respectively, of the deceased’s property, and 3/7 shares, respectively.

(d) Filing of a prior suit and its progress;

1) From around 2013, the Plaintiffs filed a lawsuit against the Defendant for the registration of cancellation of each transfer of ownership in the name of the Defendant with respect to each land set forth in Articles 1 and 2 of the instant case against the Defendant. At the time of each sales contract, each seller, the deceased, and the Defendant, there was a three-party title trust agreement between each seller, the deceased, and the Defendant, trusting only the name of the purchaser of each land set forth in Articles 1 and 2 of the instant case, and such three-party title trust agreement is null and void pursuant to the main text of Article 4(2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”). As such, each seller or his heir’s heir, on behalf of each seller or his heir, demanding the Defendant to implement the registration procedure for cancellation of

2) In the first and second lands of this case, the court dismissed the contract title trust agreement between the deceased and the defendant regarding the title trust agreement between the deceased and the defendant with respect to the 21/43.6 shares in the name of Nam-gu Incheon Metropolitan City (hereinafter “△△△△△△△△△△ Four parcels”), among the lands of this case 1 and 2, prior to the annexation (number 5 omitted), 16, 16, 1, and the division (number 6 omitted), and the division (number 8 omitted), on the ground that the lawsuit seeking the cancellation of the above △△△△△ Four parcels cannot be deemed to have been filed by the deceased, and that there was a three-party title trust agreement between the deceased and the defendant as to the remaining parts of the lands of this case 1 and 2, and the claim for the cancellation of ownership transfer registration was accepted (Seoul High Court Decision 2015Na205328, hereinafter “prior judgment”), and such judgment became final and conclusive on March 28, 2017 (hereinafter “the foregoing judgment”).

【Fact-finding without a dispute over the ground for recognition, entry of Gap evidence 1 through 8 (including each number, if any; hereinafter the same shall apply), the purport of the whole pleadings

2. Determination as to the cause of action

A. Whether a contract title trust is recognized for 4 parcels of △△△

1) The Plaintiffs acknowledged that the contract title trust agreement was established between the deceased and the Defendant on the four parcels of △△△△ in the preceding lawsuit, and the Defendant, the title trustee, asserted that the Plaintiffs, who succeeded to the deceased, were liable to return the aggregate of KRW 895,200,000 from the purchase funds of △△ Four parcels of land in accordance with inheritance shares. Accordingly, the Defendant asserted that the above four parcels of △△△△△△△ were not entrusted in the name of the deceased.

2) The facts acknowledged in the civil cases already established are significant evidence, barring special circumstances, and thus, it cannot be rejected without any reasonable explanation (see, e.g., Supreme Court Decision 94Da47292, Jun. 29, 195). As seen earlier, the prior judgment acknowledged that each contract title trust was established between the deceased and the defendant on the 4 parcels of △△△△△△ in the previous judgment, and there is no special circumstance to see different from the facts recognized in the instant case. Thus, the title trust was established between the deceased and the defendant on the 4 parcels of △△△△△△△△△△△△△△, and the defendant purchased each parcel of land and each building on the ground, and completed the registration of ownership transfer, as seen earlier, the above contract title trust was established.

B. Scope of unjust enrichment to be returned

1) If the contract title trust agreement is subsequent to the enforcement of the Act on the Registration of Real Estate under Actual Titleholder’s Name, the title truster could not acquire ownership of the pertinent real estate from the beginning. Therefore, the damages suffered by the title truster due to the invalidation of the said contract is not the pertinent real estate itself but the purchase fund provided to the title trustee. Therefore, the title trustee is deemed to have unjust enrichment of the amount equivalent to the purchase fund provided by the title truster, not the pertinent real estate itself, (Supreme Court Decision 2007Da90432 Decided October 14, 2010).

2) The following facts are established: (a) the purchase price for the land and the buildings on the land (number 2 omitted); (b) the purchase price for the land (number 5 omitted); (c) the purchase price for the land and the buildings on the land (number 5 omitted); (d) the purchase price for the land and the buildings on the land before the merger; (e) KRW 135,00,000; and (e) the purchase price for the land and the buildings on the land (number 4 omitted); and (e) the purchase price for the land (number 6 omitted); and (g) the land and the buildings on the land after the merger (number 8 omitted); and (e) the purchase price for each land (number 6 omitted); and (g) the price for the land and the buildings on the land (number 8 omitted); and (g) the Defendant received the total purchase price for each of the above purchase price from the deceased with the purchase price of KRW 895,200,000; and (g) barring any special circumstance, the Defendant is obligated to return

3) Since the Defendant concluded a sale contract on each of the above lands (number 2 omitted), (number 5 omitted), (number 4 omitted), and (number 4 omitted and removed according to the deceased’s will after purchase, the Defendant asserts that the part of the purchase fund on each of the lands and buildings should be excluded from the scope of unjust enrichment return within the scope of unjust enrichment. The Defendant had existing ground buildings on each of the lands (number 2 omitted), before annexation (number 2 omitted), (number 5 omitted), and (number 4 omitted), and the sale contract between the Defendant and each seller was made including each of the above lands and existing ground buildings. The fact that each of the above lands was removed after the Defendant’s completion of the registration of ownership transfer and used as the parking lot and resting space of △△○○ Private School, and that each of the above lands was removed after the Defendant’s completion of the registration of ownership transfer, and that each of the above lands and buildings was removed by considering the purport of each of the above evidence, No. 14, 16, and 18 evidence, and that each of the above lands were removed.

3. Judgment on the defendant's assertion

(a) Extinction of prescription;

1) The Defendant asserts that the Plaintiffs’ unjust enrichment return claim extinguished by ten years after the completion of the registration of △△ four parcels in the name of the Defendant, and that the Plaintiffs approved the deceased or the Plaintiffs’ unjust enrichment return claim by up to 2012, the Defendant asserts that the interruption of prescription was interrupted by the deceased or the Plaintiffs’ unjust enrichment return claim by up to that time.

2) A debt approval as a ground for interrupting extinctive prescription is established by indicating that an obligor, who is a party to the extinctive prescription benefit, is aware of the other party’s right or obligation to the obligor, or his/her agent, upon the completion of the extinctive prescription period. The method of indication is not an implied and explicit case without demanding any form. In addition, the approval is not a unilateral act that recognizes the existence of the other party’s right, etc., and it is not necessary to confirm specific matters concerning the cause, content, scope, etc. of the right, but it is not necessary for the obligor to know of the legal nature of the right, etc., or to specify the cause of the right, etc. In addition, whether there is such approval or not, by comprehensively examining the contents, motive, and circumstance of the expressive act at issue, the purpose and genuine intent of the relevant party to achieve through such act, etc., in accordance with logical and empirical rules, and common sense of society (see Supreme Court Decision 2012Da466565, Oct. 25, 2012).

3) As seen earlier, from around 2002 to around 2004, the registration of ownership transfer was completed in the name of the Defendant and the claim for return of unjust enrichment against the deceased against the Defendant was created. The fact that the instant lawsuit was filed on May 26, 2017 after the lapse of 10 years from the said lawsuit is apparent in the record.

4) However, comprehensively taking account of the overall purport of the arguments in the evidence Nos. 10 and 11, the Defendant, until before the deceased died, demanded the deceased to pay the taxes and public charges imposed on the land Nos. 1 and 2, including the property tax, etc. imposed on the deceased, by not later than the day before the deceased died. It can be recognized that the deceased paid the same, and the statement No. 5 is insufficient to reverse the recognition, and there is no other counter-proof. This is an act to be taken only when it is premised on the deceased’s recognition that the four parcels of △△△△△△ are not his own ownership in relation to the deceased, and thus, it is reasonable to view that the Defendant was implicitly included in the statement that the deceased was aware that he was liable to return the amount equivalent to the purchase fund for the four parcels of △△△△△△△△△△△△△△△, and thus, the Defendant approved the right to claim the return of unjust enrichment against the deceased and his heir by not later than December 2012.

5) However, as seen earlier, the instant lawsuit was filed on May 26, 2017, for which ten years have not passed since it was filed, the Defendant’s defense of extinctive prescription is therefore without merit.

(b) Offset defense;

1) The defendant's assertion

A) ① The Defendant retired from office at the △△○ Private Teaching Institute operated by the Deceased, and was not yet paid the retirement allowance of KRW 334,687,837. ② The Deceased and the Plaintiffs, without any title, occupied and used and profit-making from the four parcels of the △△△○ Private Teaching Institutes, which are owned by the Defendant, for the operation of the △△△○○ Private Teaching Institutes without any title, are obligated to return the rent equivalent to the rent to the Defendant. ③ The Defendant paid the property tax on each parcel of the instant lands including the four parcels of △△△△△△△ from 2012 to 2016. ③ The Defendant paid the property tax on the remaining parcels of the instant lands except the four parcels of △△△△△△△△△△, which were deemed owned by the Defendant, to have been paid by the Plaintiffs. As such, the Defendant’s respective property tax on each portion of the instant lands paid by the Plaintiffs ought to be returned to the Defendant.

B) The Defendant set off the Plaintiff’s claim for retirement allowance, the claim for return of unjust enrichment equivalent to rent, the claim for return of unjust enrichment equivalent to property tax, or the claim for reimbursement.

(ii) the existence of automatic claims

A) Retirement allowance claim

(1) The facts that the Defendant retired from office in the △△○○○○○ Institute operated by the Deceased from August 1, 1984 to October 26, 2006 are not disputed between the parties. In addition, in full view of the purport of the entire pleadings as to the statements in the evidence Nos. 9 and 10, the facts that the Defendant paid monthly basic pay for three months before the Deceased’s retirement to the Defendant are KRW 1,910,000 for allowances, and KRW 2,510,000 for allowances, and KRW 1,910,000 for bonuses in each month.

(2) Meanwhile, according to the evidence evidence Nos. 9 and 10 as seen earlier, the △△○ Private Teaching Institutes appears to have five or more full-time workers. As such, the amount of retirement calculated by multiplying the Defendant’s average wage calculated therefrom by the number of continuous work years is KRW 119,528,687 as follows.

The period of service of the defendant on August 1, 1984 to October 26, 206 (22 months): 13,259,99 won - July 27, 2006 to July 31, 2006 (5 days): 712,903 won [= 4,420,00 won + 2,510,00 won + 5/310,00 won + 5/610,00 won (hereinafter the same shall apply] - 13,259/60,00 won x 36/60,000,000 won x 2,510,610,00 won x 9/6,000 won per annum 36/6,000 (31/6,000,000 won): -6/6,000 won per annum 1, 2006

(3) Judgment on the defendant's assertion

(A) The Defendant, from around 2001 to the time of retirement, received KRW 10,00,000 per month from the Deceased as a sales bonus, in addition to the amount of salaries, asserts that this constitutes the wages that serve as the basis for the calculation of the amount of retirement allowances, not for the purpose of the sales bonus or reimbursement of actual expenses, and thus, should be included in the calculation of the average wage.

(B) However, as a matter of principle, the sales bonus is paid for the purpose of compensating for actual expenses, and cannot be deemed as being included in the calculation of the retirement allowance. Even if based on the statement in the evidence No. 11 cited by the Defendant, the Defendant did not have been fixed at KRW 10,000 per month, and the Defendant also received the amount exceeding or short of KRW 10,000 per month (e.g., the Defendant received KRW 6,740,000 on December 2, 2002, and received KRW 16,00,000 on May 9, 2005). The statement in the evidence No. 11 alone, it is insufficient to recognize that the Defendant received each claim in return for the prescribed work, and there is no other evidence to acknowledge otherwise. This part of the Defendant’s assertion on a different premise is rejected.

(4) Judgment on the plaintiffs' assertion

(A) The plaintiffs asserted that the deceased had already paid the retirement allowance claimed by the defendant to the defendant, or that the defendant has renounced the retirement allowance claim, but there is no evidence to acknowledge this.

(B) In addition, the plaintiffs asserted that the defendant's above retirement allowance claim has expired after the lapse of three years from the time when the defendant retired from △△○ Private Teaching Institutes. However, even if the extinctive prescription has expired under Article 495 of the Civil Act, if the defendant's claim for return of unjust enrichment against the deceased and the plaintiffs can be offset before the completion of the extinctive prescription, it shall be offset. The defendant's claim for return of unjust enrichment against the deceased and the plaintiffs was due from around 2002 to October 27, 2006, when the ownership transfer registration of △△△ 4 lots and each ground building was completed. The defendant's retirement allowance claim was due and due on October 27, 2006, which was last worked by the defendant at △△△○ Private Teaching Institutes, and therefore, each of the above claims was offset against the defendant's retirement allowance claim on October 27, 2006, and therefore, the defendant can offset the above automatic retirement allowance claim on other premise. This part of the plaintiffs' claim is without merit.

B) Claim for return of unjust enrichment equivalent to the rent

(1) The defendant's assertion

The Deceased and the Plaintiffs have been occupying, using, and making profits from, four parcels owned by the Defendant without any title, so they are obligated to return unjust enrichment equivalent to the rent to the Defendant.

(2) Determination on the part of the period until November 23, 2017

(A) Comprehensively taking into account the following circumstances, the deceased acquired 4 lots of land through the Defendant to use the deceased’s funds as the site of △△○ Private Teaching Institutes. The Defendant did not raise any objection to the deceased’s possession and use of △△ 4 lots for a period exceeding 10 years after the acquisition of ownership, and the deceased allowed the deceased to remove each ground building to use △ 4 lots of land. The Plaintiffs filed the instant lawsuit by asserting that each of the above land was trusted in title, and filed the instant lawsuit on November 20, 2017, and sought the return of unjust enrichment equivalent to the rent. In full view of the following circumstances, it is reasonable to view that the deceased and the deceased concluded a loan of use contract between the Defendant and the deceased for free use of each of the above land at around the time of title trust of △△△ 4 lots of land, and it was reasonable to view that the Defendant’s death and the deceased’s heir claimed for the return of unjust enrichment to the Plaintiffs, the deceased’s heir 10.217

(B) If so, the deceased or his heir, during the period from November 23, 2017 when the above loan contract was terminated, the plaintiffs were legally entitled to use △△ Four parcels. Thus, the prior defendant's assertion on a different premise is without merit.

(3) As to the period from November 24, 2017

(A) The Plaintiffs should be deemed to have used four parcels of △△△○ Private Teaching Institutes and their resting places, without any title, from November 24, 2017, following the termination of the loan agreement between the Defendant and the Deceased, for the parking lots and their resting places of △△○ Private Teaching Institutes.

(B) If so, the plaintiffs are obligated to return unjust enrichment equivalent to the rent acquired thereby to the defendant. However, the claims for the creation and scope of the claim for return of unjust enrichment and the burden of proving the scope of the claim for return of unjust enrichment lies in the party asserting the claim for return of unjust enrichment. Since the defendant did not assert or prove the amount and scope of the claim for return of unjust enrichment equivalent to the rent arising therefrom, it is therefore without merit.

C) Right to claim a return of unjust enrichment equivalent to the substitute payment of property tax

(1) The defendant's assertion

Among the lands of this case Nos. 1 and 2, the property tax on the remaining lands except △△ Four parcels owned by the defendant shall be borne by the plaintiffs, and since the defendant paid it, the plaintiffs are obligated to return it in unjust enrichment.

(2) Determination

As seen earlier, the prior judgment recognized that a title trust agreement between the seller and the defendant and the deceased was established for the remaining land except △ 4 parcels in the prior judgment. However, in the case of the so-called three-party registered title trust, the title trust agreement and the registration arising therefrom are invalidated pursuant to the Real Estate Real Name Act, and thus, the real estate trusted in title is returned to the seller. However, the title truster is entitled to file a claim for the registration of ownership transfer against the seller (see Supreme Court Decision 2009Da49193, 49209, Sept. 8, 2011, etc.). Accordingly, the Plaintiffs are merely the parties to the claim for the registration of ownership transfer against each seller, who is the owner of the remaining land except △△△ 4 parcels, and thus, it is difficult to view that the Plaintiffs are obligated to pay the remaining land except △△△ 4 parcels. The Defendant’s assertion on a different premise is without merit.

(iii)an expression of intent of offset and set-off;

A) The Defendant owned 119,528,687 won as retirement allowance claim against the Deceased, and the above retirement allowance claim was in offset against the Defendant’s unjust enrichment return claim against the Defendant on October 27, 2006 that the Defendant retired from △△○ Private Teaching Institutes on the same day. As seen earlier, it is evident that the Defendant’s written brief dated November 20, 2017, stating that the Defendant would offset the Defendant’s unjust enrichment return claim against the Defendant’s wrongful enrichment return claim against the Defendant on the automatic retirement allowance claim, is evident that it reached the Plaintiffs on November 23, 2017.

B) Thus, the defendant's above retirement allowance claim 119,528,687 won against the plaintiffs and the plaintiff's claim for return of unjust enrichment against the defendant 895,20,000 won were retroactively extinguished from an equal amount on October 27, 2006, which is set-off day. Thus, the defendant's defense of set-off is justified within the above scope of recognition.

C. Sub-decision

Ultimately, the defendant is obligated to pay to the plaintiff 1 and 2 221,620,375 won (=(895,20,000 won - 119,528,687 won) x 2/7), to the plaintiff 3 32,430,562 won (=(119,528,687 won - 119,528,687 won) x 3/7) x 6/7 of the copy of the complaint of this case from June 6, 2017 following the delivery of the copy of the complaint of this case to the extent and existence of the defendant's obligation to pay money to the plaintiff 1 and 2 5% per annum under the Civil Act until December 15, 2017, which is the sentencing day of this case, and 15% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day until the day of full payment.

4. Conclusion

The plaintiffs' claims are accepted within the scope of the above recognition, and the remainder is dismissed as it is without merit. It is so decided as per Disposition.

(attached Form omitted)

Judges Seo Jung-dae (Presiding Judge)