Seoul Central District Court 2010 Gohap122822 ( October 20, 2012)

A title truster and a person who has entered into a real estate sales contract shall not be deemed a third party under Article 4 (3) of the Real Estate Real Name Act.

The third party under Article 4 (3) of the Real Estate Real Name Act refers to a person who has a new interest with a title trustee on the basis that the title trustee is a real right holder, and if the title trustee entered into a contract to acquire a real right to real estate with the title trustee and only the title of registration has been made by the title trustee, it does not constitute a third party under the said provision

2012Na17211, cancellation, etc. of registration of initial ownership

Korea

KimAA 2 others

Seoul Central District Court Decision 2010Kahap122822 Decided January 20, 2012

April 3, 2013

April 19, 2013

1. Of the judgment of the court of first instance, the part against the Defendants ordering performance in excess of the subsequent part ordering performance is revoked, and the Plaintiff’s claim corresponding to the above revoked part is dismissed.B; Defendant KimA, while Defendant RedCC, with respect to each real estate listed in Schedule 1 to 17, and Defendant RedCC, with respect to each real estate listed in Schedule 18 to 40, attached Table 2, and Defendant DoD, with respect to each real estate listed in Schedule 18 to 40, with respect to each real estate listed in Schedule 41 to 54, with respect to each real estate listed in Schedule

2. The plaintiff's 2 preliminary claims against the defendants in the land which is the object of site ownership among each real estate listed in the attached Table 1 list against the defendants and the remaining appeals by the defendants are dismissed.

3. One-third of the total costs of litigation shall be borne by the Plaintiff and the remainder by the Defendants, respectively.

1. Purport of claim

(a) to BB of the primary claim, and

1) Defendant KimA, Inc., and

A) The number of each ownership transfer registration completed under No. 37528 of the receipt on June 1, 2009 with respect to each of the real estate listed in [Attachment I] List No. 1 through 7, Seoul Southern District Court, Guro-gu, Seoul Southern District Court.

B) With respect to the real estate listed in paragraph (8) of the Schedule I, the Seoul Southern District Court, Guro Registry of the Seoul Southern District Court, and the transfer of ownership completed under No. 76853 on October 20, 209

C) With respect to the real estate listed in paragraph 9 of the Schedule I, the Seoul Southern District Court, Guro Registry of the Seoul Southern District Court, and the transfer of ownership completed under No. 22842 on April 8, 2010.

D) The registration of transfer of ownership completed under No. 22844 of the receipt of April 8, 2010, with respect to the real estate listed in Section 10 of the Schedule No. 10 of the annexed Table No. 1

E) The ownership transfer registration completed under No. 22486 of the receipt on April 8, 2010 with respect to the real estate listed in Section 11 of Schedule 1 attached hereto, and

F) The ownership transfer registration completed under No. 22848 of the receipt on April 8, 2010 with respect to the real estate listed in Section 12 of Schedule 1 attached hereto, and

G) The registration of transfer of ownership completed under No. 22850 of the receipt of April 8, 2010, with respect to the real estate listed in Section 13 of the Schedule No. 1 of the attached Table No. 1

H) With respect to the real estate listed in Section 14 of Schedule 1, the Seoul Southern District Court, Gu Office of the Seoul Southern District Court, and the transfer of ownership, completed under No. 22854 on April 8, 2010, and

I) With respect to the real estate listed in Section 15 of Schedule 1, the transfer of ownership completed under No. 22856 of the receipt on April 8, 2010 with respect to the Seoul Southern District Court’s registration office, and

(j) The registration of transfer of ownership completed under No. 22858 of the receipt of April 8, 2010, with respect to the real estate listed in Section 16 of the Schedule No. 1, Seoul Southern District Court, Guro-gu, Seoul District Court

(k) With respect to the real estate listed in Section 17 of Schedule 1, the transfer of ownership completed under No. 22860 of the receipt on April 8, 2010, and the transfer of ownership registered under Section 22860.

2) Defendant RedCC, and

A) The registration of each transfer of ownership completed under No. 37527 of the receipt on June 1, 2009, with respect to the real estate listed in separate sheet No. 18 through 22 of the Schedule No. 1, Seoul Southern District Court, Guro-gu, Seoul District Court

B) The number of ownership transfer registration completed under No. 85514 of the receipt on November 17, 2009, with respect to the real estate listed in Section 23 of Schedule 1, Seoul Southern District Court, Gu Office of Registry of the Seoul Southern District Court.

C) With respect to the real estate listed in Section 24 of Schedule 1, the transfer of ownership completed on April 21, 2010 as received on April 21, 2010, and the transfer of ownership completed on April 26282.

D) The number of ownership transfer registration completed under No. 26283 of the receipt on April 21, 2010, with respect to the real estate listed in Section 25 of Schedule 1, Seoul Southern District Court, Gu Office of the Seoul Southern District Court, and

E) With respect to the real estate listed in Section 26 of Schedule 1, the transfer of ownership completed under No. 26284 of the receipt on April 21, 2010, Seoul Southern District Court, Gu Office of Registry of the Seoul Southern District Court, and

F) With respect to the real estate listed in Section 27 of Schedule 1, the transfer of ownership, which was completed under No. 26285 of the receipt on April 21, 2010, with respect to the Seoul Southern District Court’s registration office, and

G) The number of ownership transfer registration completed under No. 26286 of the receipt on April 21, 2010, with respect to the real estate listed in Section 28 of Schedule 1, Seoul Southern District Court, Gu Office of the Seoul Southern District Court, and

H) With respect to the real estate listed in Section 29 of Schedule 1, the Seoul Southern District Court, Gu Office of the Seoul Southern District Court, and the transfer of ownership completed under No. 26287 of the receipt of April 21, 2010

I) With respect to the real estate listed in Section 30 of Schedule 1, the transfer of ownership, completed under No. 26288 of the receipt on April 21, 2010, Seoul Southern District Court, Gu Office of Registry of the Seoul Southern District Court.

(j) The registration of transfer of ownership completed under No. 26289 of the receipt on April 21, 2010 with respect to the real estate listed in Section 31 of Schedule 1 attached hereto, and

(k) With respect to the real estate listed in Section 32 of Schedule I, the ownership of the real estate registered under Section 26290 of the receipt on April 21, 2010, which was completed on April 21, 2010.

(l) With respect to the real estate listed in Section 33 of Schedule 1, the transfer of ownership completed under No. 26291 of the receipt on April 21, 2010, and the transfer of ownership registered under Section 26291.

(m) With respect to the real estate listed in Section 34 of Schedule 1, the transfer of ownership, completed under No. 26292 of the receipt on April 21, 2010, Seoul Southern District Court, Gu Office of Registry of District Court, and

n) With respect to the real estate listed in Section 35 of Schedule 1, the Seoul Southern District Court, Gu Office of the Seoul Southern District Court, and the transfer of ownership completed under No. 26293 on April 21, 2010, and

(o) With respect to the real estate listed in Section 36 of Schedule 1, the transfer of ownership completed under No. 26294 of the receipt on April 21, 2010, Seoul Southern District Court, Gu Office of Registry of the Seoul Southern District Court.

(p) With respect to the real estate listed in Section 37 of Schedule 1, the transfer of ownership completed under No. 26295 of the receipt on April 21, 2010 with respect to the real estate listed in Section 37 of Schedule 1, and

(q) With respect to the real estate listed in Section 38 of Schedule 1, the transfer of ownership completed under No. 26296 of the receipt on April 21, 2010 with respect to the Seoul Southern District Court’s registration office, and

(r) With respect to the real estate listed in Section 39 of Schedule 1, the Seoul Southern District Court, Gu Office of the Seoul Southern District Court, and the transfer of ownership completed under No. 26297 of the receipt on April 21, 2010, and

(s) The registration of transfer of ownership completed under No. 26298 of the receipt on April 21, 2010, with respect to the real property listed in Section 40 of the Schedule No. 1, Seoul Southern District Court, Seoul Southern District Court, Dong Office

3) Defendant DoD shall be, and

A) With respect to the real estate listed in paragraph 41 of the attached Table 1, the Seoul Southern District Court, Gu Office of the Seoul Southern District Court, and the transfer of ownership completed under No. 26265 on April 21, 2010, and

B) With respect to the real estate listed in Section 42 of Schedule 1, the Seoul Southern District Court, Gu Office of the Seoul Southern District Court, and the transfer of ownership completed under No. 26266 on April 21, 2010, and

C) With respect to the real estate listed in Section 43 of Schedule 1, the Seoul Southern District Court, Gu Office of the Seoul Southern District Court, and the transfer of ownership completed under No. 26267 of the receipt of April 21, 2010

D) With respect to the real estate listed in Section 44 of the Schedule I, the Seoul Southern District Court, Gu Office of the Seoul Southern District Court, and the transfer of ownership completed under No. 26268 of the receipt of April 21, 2010, and

E) With respect to the real estate listed in Section 45 of Schedule 1, the transfer of ownership completed under No. 26269 of the receipt as of April 21, 2010, Seoul Southern District Court, Guro registry office of Seoul Southern District Court, and

F) With respect to the real estate listed in Section 46 of Schedule 1, the transfer of ownership, which was completed by the receipt No. 26270 on April 21, 2010, as to the Seoul Southern District Court’s registration office, and

G) With respect to the real estate listed in Section 47 of Schedule 1, the Seoul Southern District Court, Gu Office of the Seoul Southern District Court, and the transfer of ownership that was completed under No. 26271 on April 21, 2010, and

H) With respect to the real estate listed in Section 48 of Schedule 1, the Seoul Southern District Court, Gu Office of the Seoul Southern District Court, and the transfer of ownership, completed under No. 26272 on April 21, 2010, and

I) With respect to the real estate listed in Section 49 of Schedule 1, the transfer of ownership completed under No. 26273 of the receipt on April 21, 2010, and the transfer of ownership registered under Section 26273.

(j) With respect to the real estate listed in Section 50 of Schedule 1, the transfer of ownership, completed under No. 26274 of the receipt on April 21, 2010, as to the real estate listed in Section 50 of Schedule 1.

(k) With respect to the real estate listed in Section 51 of Schedule 1, the transfer of ownership, which was completed under No. 26275 of the receipt on April 21, 2010, and

(l) With respect to the real estate listed in Section 52 of Schedule 1, the transfer of ownership completed under No. 26276 of the receipt on April 21, 2010 with respect to the Seoul Southern District Court’s registration office, and

(m) With respect to the real estate listed in Section 53 of Schedule 1, the transfer of ownership registration completed under No. 26277 of the receipt on April 21, 2010 with respect to the Seoul Southern District Court’s Guro-ro registry, and

n) With respect to the real estate listed in Section 54 of Schedule 1, the Seoul Southern District Court's Guro registry office of Seoul Southern District Court was conducted on April 21, 2010, and each procedure for registration of transfer of ownership completed under No. 26278 of receipt,

B. First preliminary claim

BB, and Defendant KimA, each real estate listed in Schedule 1 to 17, and Defendant RedCC will implement each procedure for ownership transfer registration for each real estate listed in Schedule 1 to 18 to 40, and Defendant DoD will implement each procedure for ownership transfer registration for each real estate listed in Schedule 1 to 44, for each real estate listed in Schedule 1 to 41 to 54.

C. Second preliminary claims

(i) between B and Defendant KimA, and

A) With respect to each real estate listed in [Attachment I] List 1 through 7, the title trust agreement entered into on May 22, 2009, and the title trust agreement entered into.

B) The title trust agreement concluded on March 26, 2010 with respect to each real estate listed in [Attachment 1 List No. 8 shall be revoked on October 14, 2009, and (c) with respect to each real estate listed in [Attachment 1 List No. 9 through 17].

(ii) B between B and Defendant RedCC, and

A) With respect to each real estate listed in [Attachment I] List 18 through 22, the title trust agreement entered into on May 22, 2009, and the title trust agreement entered into.

B) A title trust agreement concluded on November 16, 2009 with respect to the real estate stated in [Attachment 1 List 23]

C) The title trust agreement concluded on April 9, 2010 with respect to each real estate listed in [Attachment I] List 24 through 40 shall be revoked, respectively.

3) The title trust agreement concluded on April 9, 2010 between B and Defendant DaD with respect to each real estate listed in Section 41 through 54 of the attached Table No. 1 shall be revoked.

4) The Plaintiff, and Defendant KimA, and Defendant RedCC, each pay 00 won and 000 won with 5% interest per annum from the day following the day of the instant judgment to the day of full payment.

2. Purport of appeal

The part of the judgment of the court of first instance against the defendants shall be revoked, and all of the plaintiff's claims against the defendants corresponding to the revocation part shall be dismissed.

1. Scope of the trial;

The court of first instance dismissed the plaintiff's primary claim against the defendants, and accepted the first primary claim against the defendants, and only the defendants appealed to appeal, and the subject of this court's trial is limited to the first preliminary claim against the defendants and the second preliminary claim against the defendants.

2. Basic facts

A. Tax claims against the Plaintiff BB

The plaintiff has a taxation claim against BB, which was the chairperson of the former EE Group (rev. 12, 1998) and the amount reaches KRW 000 as of the end of November 2004, and KRW 000 as of October 21, 2010 (hereinafter referred to as the "instant taxation claim").

(b)each registration of initial ownership in the name of the F and variableG;

1) On June 20, 200, the Seoul Regional Tax Office (the relocation of the place of business from Gangnam-gu, Seoul to 000 OOOO of Seoul on December 8, 2001), the business registration was completed with the name of the business operator as the GG whose name changed from BB's her father Furg Furg and officers and employees of the EE group (hereinafter referred to as the "HH construction").

2) On June 18, 2001, H Construction entered into a contract with Kim II to purchase a purchase price of KRW 8,021 square meters (hereinafter “instant land”) from Guro-gu Seoul Government OOOO (hereinafter “instant contract”) in the name of NaFG, and completed the registration of ownership transfer on June 20, 201 with 9/10 of NaF shares and 10/10 of YG shares, and on December 15, 2001 between JJ Industrial Development Co., Ltd. (hereinafter “JJ Industrial Development”), and the construction price of KRW 00 (hereinafter “the instant construction contract”) was registered in the name of 4th floor and 12th floor underground, and the new construction of the instant condominium, and the new construction of the instant aggregate building in the name of HaK (hereinafter “the instant construction contract”).

(3) On October 7, 2004, after the completion of the construction of the aggregate building in this case, the registration of preservation of ownership consisting of 9/10 of the FF shares and 1/10 of the changedG shares (hereinafter referred to as "each of the above cases") was completed with respect to each of the divided ownership in this case. At the time, the land in this case was incorporated into the land which is the object of the right to the site of each of the households in this case. After the completion of the sale of part of the aggregate building in this case, each of the real estate listed in the separate sheet No. 1 (hereinafter referred to as "each of the above real estate in this case," and "each of the above households" if the other real estate is excluded from the right to the site in this case) was not sold.

Defendant KimA is the wife of the changedG, Defendant RedCC is the husband of NaF, and Defendant DaD is the independent form of Defendant RedCC, and Defendant DoD is the primary claim from June 1, 2009 to April 21, 2010, and with respect to each unit of movable property listed in [Attachment 1] Nos. 1 to 17 among each unit of the instant real property, each unit of movable property listed in [Attachment 1] and Nos. 18 through 40 are registered in the name of Defendant RedCC, and with respect to each unit of movable property listed in [Attachment 1] to 41 to 54, each unit of movable property listed in the name of Defendant RedCC was registered (hereinafter “each unit of ownership transfer”).

(d) Related lawsuits, etc.;

1) From April 21, 2004 to October 26, 2004, the head of the Seoul Regional Tax Office determined that the actual entrepreneur of H Construction who actually conducted a tax investigation on H Construction, and that the actual entrepreneur of H Construction who conducted the instant new construction business is BB, and the NaF, and the NaG, are the disguised entrepreneur who leased BB only the name to the Na, and requested the head of the former Guro Tax Office to register BB under Article 7(4) of the Enforcement Decree of the Value-Added Tax Act on December 10, 204, and accordingly, the former Tax Office made a request for the tax return on December 13, 2004, on the one hand, that the former Tax Office made the tax return on the H Construction’s business registration to BB, and that the former Tax Office made the tax return on January 3, 201 to the Value-Added Tax for the 200,000,000 won, and 205,000,00 won.

2) A civil suit (Seoul Central District Court 2006Gahap47399) filed against the Republic of Korea by NaF and NaF, and NaG were actual business operators of HH Construction, and they claimed that the value-added tax was refunded to them. However, on April 4, 2007, NaB had been operating the construction by borrowing the name of NaF and variableG from the name of NaF and NaG, the actual business operators were sentenced by NaB on the grounds that NaB was the person liable for the payment of value-added tax and the right to claim the refund of value-added tax, and that there was no claim for the refund of value-added tax, and the above judgment became final and conclusive on July 23, 2009 (Seoul High Court 2007Na41272) and on January 27, 2011 (Seoul High Court 2009Da73636, Jul. 26, 2011).

3) In the administrative litigation (Seoul Administrative Court 2007Guhap18543), B, etc. brought by B, etc. against the head of the Guro tax office (Seoul Administrative Court 2007Guhap18543), and B claimed illegality such as imposition of value-added tax, but the above court also rendered a judgment on July 2, 2008 to the effect that BB’s assertion was dismissed in part and dismissed in part by deeming BB as a business operator of HH construction. The above judgment became final and conclusive as the dismissal of appeal on March 25, 2009 (Seoul High Court 2008Nu21449) and on January 27, 2011 (Supreme Court 2009Du5886).

[Grounds for Recognition] The facts without dispute, Gap evidence 1 through 12 (if there is a natural disaster, referring to the number number) and Eul evidence 1 to 8, and the purport of the whole pleadings

3. Determination as to the first preliminary claim against the Defendants

A. Effect of each of the instant registrations of initial ownership

According to the aforementioned evidence and evidence, BGF testimony for the construction of the building, and that the former OB had been in arrears with the construction of the building on May 12, 198, and that HG had been in the name of the former EE Group's officers and employees, and that HF had been in the size of the new construction of the new construction of the building on December 10, 1975, and that it was difficult for HF to participate in the construction due to childbirth, and that the new construction of the new construction of the building was in the name of 3GGF to obtain new construction contracts under the name of the former EGF, and that the former EG would have been in force with respect to the construction of the new construction contract, and that the latter would have been in force with respect to the construction of the new construction contract, and that the latter would have been in force with respect to the construction permit of the new construction of the new construction contract, and that the latter would have been in force with respect to the construction permit of the former 2GF.

B. The validity of each of the instant households out of the registration of ownership transfer

As seen earlier, insofar as the Defendants entered into the instant registration of ownership transfer under the name of the FG, and each of the instant units were invalid after the registration of ownership transfer under the name of the Defendants, each of the instant units was purchased under the name of the FG, and each of the instant units was invalid, and each of the instant units was purchased under the name of the FG, and each of the instant units was lawfully purchased under the name of the Defendants, and the Defendants did not appear to constitute a third party under Article 4(3) of the Real Estate Real Name Act. Accordingly, the Defendants were unable to oppose the Defendants by the registration of ownership transfer under the name of the FG, and even if not, the Defendants were to have entered into the registration of ownership transfer under the name of the FG, and each of the instant units was purchased under the name of the FG, with respect to the real estate under the name of the Defendants, and thus, the third party is not entitled to have a new title trust agreement under the name of the respective provision on the real estate under the name of the title trustee.

C. Effect of ownership transfer registration on the land of this case

According to Article 4(1) and (2) of the Real Estate Explanation Act, where the title truster and the title trustee entered into a title trust agreement with the owner who is not aware that the title trustee was the party to the instant real estate, and completed the registration of ownership transfer under the title trust agreement between the title truster and the trustee, the title trustee shall acquire the complete ownership of the pertinent real estate, and the title truster shall be obliged to return unjust enrichment equivalent to the purchase fund provided by the title truster (see, e.g., Supreme Court Decision 2002Da6922, Jan. 28, 2005). Since the title truster and the title trustee did not actually own and operate H construction, and the title truster purchased the instant land under the name of BBF, and the name of GG, for which the title truster and the title trustee did not know that the instant real estate was the party to the instant construction, and the ownership transfer registration was concluded under the name of the title truster and the name of the other party to the instant real estate, and there is no other reason to recognize that the ownership transfer agreement was invalid between the title trust and the other party to the title trust.

(d) A request for registration of transfer of ownership based on the restoration of the title;

A claim for ownership transfer registration for the restoration of real name is allowed in lieu of seeking the cancellation of the registration against the current registered titleholder by a person who has already registered his/her ownership in his/her future or who has acquired ownership by law to restore the real name (see, e.g., Supreme Court en banc Decision 9Da37894, Sept. 20, 201). As seen above, BBB newly constructed the instant aggregate building and subsequently acquired it originally. As such, BB may seek against the Defendants, who are the current registered titleholder, the cancellation of ownership transfer registration for the section of exclusive ownership of a building, excluding the part of land which is the subject of land right, among each of the instant real estate in this case (see, e.g., Supreme Court Decision 2007Da68565, Feb. 15, 2008).

E. Vicarious exercise of a right to claim ownership transfer registration

The plaintiff can exercise in subrogation the right to claim the transfer of ownership against the defendants of BB in order to preserve the tax claim of this case against BB.

F. Sub-committee

If so, B, and Defendant KimA, each real estate listed in Schedule 1 to 17, and Defendant RedCC is obliged to carry out the procedure of ownership transfer registration for each real estate listed in Schedule 2 to 18 to 40, and Defendant DoD is obliged to carry out the procedure of ownership transfer registration for each real estate listed in Schedule 2 to 41 to 54, respectively.

4. Determination as to the second preliminary claim as to the land which is the object of site ownership among each of the instant real estate against the Defendants

The Plaintiff asserts that the title trust agreement on the right to a site among each of the instant real estate between BB and B constitutes an act of disposal of property that deepens the insolvency of BB in excess of the debt, and thus, constitutes a fraudulent act against the Plaintiff, a creditor of BB (the part concerning each of the instant households, among the second preliminary claims against the Defendants of the Plaintiff, shall not be separately determined as to that part, since it received the first preliminary claim as above). However, as seen earlier, although the title trust agreement on the instant land between BB and B was null and void, the land in this case acquired the ownership of the instant land and as seen earlier, as seen earlier falls under the land which is the subject of the right to a site of each of the instant real estate, and as such, the part on the right to a site in this case constitutes a land subject to the right to a site of this case, and the part on the right to a site in this case constitutes a property subject to BB’s liability in relation to the general creditors. Accordingly, under the premise that BB concluded a title trust agreement between the Defendants and the Defendants’s fraudulent act.

5. Conclusion

Therefore, the plaintiff's first preliminary claim against the defendants shall be accepted within the above recognition scope, and the first preliminary claim against the plaintiff shall be dismissed for lack of reason, and the first preliminary claim against the plaintiff shall be dismissed for lack of reason. Since the judgment of the court of first instance is in part different from this conclusion, the part against the defendants ordering the performance of the above part of the judgment of first instance shall be revoked, and the plaintiff's claim against the plaintiff shall be dismissed, and the second preliminary claim against the plaintiff as to the land which is the object of the right to the site among each real estate listed in the annexed Table 1 list against the defendants shall be dismissed for lack of reason, and the second preliminary claim against