Plaintiff (Law Firm Hysung, Attorneys Yoon Sang-sung et al., Counsel for the plaintiff-appellant)

Defendant 1 and three others (Law Firm Won et al., Counsel for the defendant-appellant)

August 26, 2015

Daegu District Court Decision 2013Da300305 Decided February 3, 2015

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

The Plaintiff

A. As to each real estate listed in the separate sheet Nos. 1 and 7:

B. As to each real estate listed in the Schedule Nos. 2 and 4, Defendant 2:

C. As to the real estate listed in the Schedule No. 3, Defendant 3:

D. As to the real estate listed in the separate sheet No. 6, Defendant 4

It shall implement the procedure for the transfer registration of ownership due to the restoration of the title of each petition.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim against the defendants is dismissed in entirety.

1. Basic facts

A. On January 20, 2002, the Plaintiff: (a) jointly invests land of 3,008 square meters and 883 square meters in a port in which Nonparty 4, who was known to Pyeongtaek, was an auction goods; (b) received a proposal from the Plaintiff to jointly sell the land in the name of the Plaintiff; and (c) distributed profits by newly constructing and selling the land on the ground after obtaining a successful bid in the name of the Plaintiff; and (d) on February 23, 2002, the Plaintiff and Nonparty 4 collected KRW 94 million in each of the above two land in the voluntary auction procedure of the Daegu District Court Port Branch of the Daegu District Court around 11797, the Plaintiff received the successful bid in the name of the Plaintiff, and completed the registration of ownership transfer on the said two land on February 26, 2002.

B. After that, on March 2, 2002, the above two parcels of land were combined into 3,891 square meters on the said (number 1 omitted), and again, on December 12, 2002, it was divided into 10 parcels of land, such as the above (number 1 omitted) through (number 3 omitted), and the Plaintiff and Nonparty 4 decided to newly construct one parcel of land on each parcel of land, including (number 1, 4, 5, 6, 7, 8, 9 omitted) after partition (number 1, 6, 8, 9 omitted).

C. However, on December 20, 2002, as the construction permit was obtained at the night, and the Plaintiff and Nonparty 4 have a conflict of opinion, the Plaintiff settled and returned the investment amount up to that time, and decided to withdraw from the Dong business. On December 26, 2002, the Plaintiff and Nonparty 4 agreed to the effect that “the Plaintiff shall delegate to Nonparty 4 the authority necessary for implementing the housing project in the name of the Plaintiff. Nonparty 4 shall pay KRW 250 million to the Plaintiff by June 30, 2003, but if delay, it shall be paid by adding damages for delay at the rate of 1% per month.” On the same day, the notarial deed of debt repayment contract was prepared and withdrawn from the Dong business.

D. Accordingly, on December 27, 2002, Nonparty 4 lent the above (number 1 omitted), (number 5 omitted) land under the name of Nonparty 5, (number 4 omitted), (number 9 omitted) land under the name of Nonparty 6, and (number 6 omitted) the above (number 6 omitted) land under the name of Nonparty 7, and completed the registration of ownership transfer under the name of Nonparty 7, and completed the registration of ownership transfer under the name of Nonparty 4, who was the nominal owner of each of the above land on the 30th of the same month. In relation to the above (number 7 omitted), with respect to the land (number 8 omitted), Nonparty 4 was in the name of the Plaintiff to secure the obligation of KRW

E. Nonparty 4 entered into a construction contract with Nonparty 9 to pay in lieu of 22 households among the above 56 households, which was completed as payment for construction work in lieu of 30,000,000 won in cash and 22 households among the above 56 households, where Nonparty 4 completed the construction work on the land (number 1, 4, 5, 6, 7, and 8 omitted), (number 9 omitted), and where Nonparty 8, who is the wife, is the contracting owner, and Nonparty 9 entered into a construction contract with Nonparty 9 to pay in lieu of 22 households among the above 56 households.

바. 이 사건 빌라는 2004. 10. 20.경 준공이 마쳐졌고, 같은 날 (지번 1 생략), (지번 5 생략) 지상 ▽▽빌 ◎◎동(8세대), ○동(8세대)에 관하여는 소외 5 앞으로, (지번 4 생략), (지번 9 생략) 지상 ◁◁빌 ◎◎동(8세대), ○동(8세대)에 관하여는 소외 6 앞으로, (지번 6 생략) 지상 ▷▷빌 ♤동(8세대)에 관하여는 소외 7 앞으로, (지번 7 생략), (지번 8 생략) 지상 ▷▷빌 ◎◎동(8세대), ○동(8세대)에 관하여는 원고 앞으로 각 소유권보존등기가 마쳐졌다.

G. Nonparty 4 paid KRW 224,80,000 (including delay damages amounting to KRW 45,000,000) to the Plaintiff on November 5, 2004 and the 8th of the same month, and KRW 295,00,000 (including delay damages amount to KRW 45,000,000) on December 14, 200 of the same year as agreed money under the above agreement.

H. Meanwhile, the co-defendant 1 of the first instance court received the claim for the construction cost of the loan of this case from Nonparty 9 on August 9, 2005, when he was not paid the construction cost after being awarded a subcontract for the construction work related to the loan of this case from Nonparty 9, and filed a lawsuit seeking payment of KRW 50 million, which is part of the construction cost, among the loan of this case, on August 9, 2005, upon receipt of the provisional attachment decision by the Daegu District Court Branch Office No. 2005Kadan3455, the provisional attachment registration was completed with respect to each building listed in [Attachment 1 to 7] in the name of the plaintiff among the loan of this case, and around October 205, the Daegu District Court Branch Branch Office No. 2005Kahap1907, which was due to payment in kind to the plaintiff, the plaintiff, the plaintiff 4, and the non-party 8.

I. On June 28, 2007, the following mediation was established between the plaintiff and the non-party 1 (hereinafter “instant mediation”). Meanwhile, the non-party 1’s claim against the non-party 4 and the non-party 8 was declared in favor of the non-party 1 by a non-party 1’s judgment on July 19, 2007, which was declared in favor of the non-party 1 by a non-party 1’s judgment on non-party 1’s appeal by the non-party 4 and the non-party 8, and the appellate court ( Daegu High Court 2007Na7400) declared in favor of the non-party 1 on January 21, 2009.

본문내 포함된 표 1. 피고 ♡♡♡(이 사건 원고, 이하 같다)는 원고(이 사건 제1심 공동피고 소외 1, 이하 같다)에게 이 사건 건물에 관한 소유권이전등기절차를 이행하고, 이와 동시에 원고는 이 사건 건물에 관하여 2004. 10. 25.자 설정계약을 원인으로 하여 2003. 10. 30. 설정된 근저당권자 흥해농업협동조합, 채무자 피고 ♡♡♡, 채권최고액 금 49,000,000원의 각 근저당권의 피담보채무를 각 인수하는 한편 이 사건 건물의 보수와 관련하여 피고 ♡♡♡에게 발생할 비용지급채무를 피고 ♡♡♡에게 갈음하여 모두 부담하기로 하고, 이러한 사실을 즉시 위 건물의 입주자들에게 통보한다. 2. 원고는 피고 ♡♡♡에게 금 90,000,000원을 지급하고, 위 약정금지급채무의 이행을 담보하기 위하여 피고 ♡♡♡로부터 이 사건 건물에 관한 소유권이전등기절차를 이행 받음과 동시에 같은 목록 기재 각 건물 중 3세대에 관하여 근저당권자 피고 ♡♡♡, 채무자 원고, 채권최고액 35,000,0000원으로 된 각 근저당권설정등기절차를 이행한다. 3. 원고는 피고 ♡♡♡와 피고 소외 8 사이의 대구지방법원 포항지원 2005가합1976 소유권이전등기 청구사건에 관하여 소송물양도에 따라 피고 ♡♡♡의 지위를 승계하여 위 소송절차에 참가하고 피고 ♡♡♡는 위 소송절차에서 탈퇴한다. 4. 이 사건 건물에 관하여 이 합의가 성립된 때를 기준으로 하여 이미 발생한 피담보채무의 이자 및 재산세 등은 피고 ♡♡♡가 부담하는 것으로 하고, 차후 발생하는 모든 법적 분쟁에 대한 책임은 원고가 전적으로 부담하기로 한다.

차. 원고는 위 조정에 따라 2007. 7. 5. 소외 1의 지정에 의하여 이 사건 건물 중 ▷▷빌 ◎◎동 ●●●호, ○동 ▲▲▲호, ■■■호를 피고 1에게, ○동 ◇◇◇호, ☆☆☆호를 소외 3에게, ○동 △△△호, □□□호를 피고 2에게 각 소유권이전등기를 마쳐주었다.

카. 이후 ▷▷빌 ○동 ▲▲▲호는 2007. 12. 10. 소외 10 앞으로, 2011. 9. 29. 소외 11 앞으로, 2012. 11. 1. 다시 소외 12 앞으로, ○동 ◇◇◇호는 2010. 3. 16. 피고 3 앞으로, ○동 ☆☆☆호는 소외 1의 딸인 피고 4 앞으로 각 소유권이전등기가 경료되었다.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5 (including paper numbers; hereinafter the same shall apply), Eul evidence No. 4 and the purport of the whole pleadings

2. Determination as to the assertion that the invalidation is null and void under Article 103 of the Civil Act

A. The plaintiff's assertion

The Plaintiff’s act of having Nonparty 1 completed the registration of ownership transfer with respect to the instant building upon the instant conciliation, despite the Plaintiff’s duty to perform the registration of ownership transfer, constitutes an act of anti-social order because Nonparty 1 actively participated in the Plaintiff’s act of breach of trust. Even if Nonparty 1 acquired the instant building from the Plaintiff upon the transfer of rights from Nonparty 9, it constitutes an act of having Nonparty 3, Defendant 1, and Defendant 2 completed the registration of ownership transfer in the future, and also constitutes an act of breach of trust against Nonparty 9. Nonparty 3, Defendant 1, and Defendant 2 actively participated in the act of breach of trust against Nonparty 1, and constitutes an act of anti-social order. Accordingly, each registration of ownership transfer completed in the future of Nonparty 3, Defendant 1, and Defendant 2 is a juristic act of anti-social order. Therefore, it is null and void as it is based on the anti-social order and the registration of ownership transfer made in the name of Defendant 4 and Defendant 3, each of which is invalid.

(b) Markets:

First, we examine whether the Plaintiff’s act of making the registration of ownership transfer to Nonparty 1 constitutes the act of breach of trust against Nonparty 4, and whether the act of Nonparty 1 constitutes the act of anti-social order committed by actively participating in it.

In order to become null and void as a juristic act contrary to social order, the transferee’s act of breach of trust is insufficient. Furthermore, it is necessary to actively participate in the transfer of ownership of the building, such as inducing the act of breach of trust, aiding and abetting, etc. In such a case, determination should take into account the considerable nature of the act of transfer and the process of establishing the second transfer contract, the relationship between the transferor and the second transferee (see Supreme Court Decision 2009Da3481, Sept. 10, 200). Under the following circumstances, the Plaintiff received the claim for construction price arising from the loan construction of this case from Nonparty 9, and the Plaintiff’s transfer of ownership to Nonparty 4, which was difficult to find as the owner of the building of this case, and thus, it is difficult to determine that the Plaintiff’s claim for the transfer of ownership of the building of this case was made by Nonparty 1 to Nonparty 1 by way of the conciliation of the property price of this case and the conciliation of the property price of this case to Nonparty 1.

Next, as to whether Nonparty 1’s transfer of ownership to Nonparty 3, Defendant 1, and Defendant 2 is null and void as a juristic act against social order, it is insufficient to recognize that Nonparty 1 was obligated to register the transfer of ownership to Nonparty 9 with respect to the instant building. Therefore, this part of the Plaintiff’s assertion premised on this premise is without merit without examining any further.

3. As to the assertion that the registration of title trust is invalid

(a) Markets:

갑 제17, 22호증, 을 제1, 2, 3호증의 각 기재에 변론 전체의 취지를 보태어 보면, 이 사건 건물 중 ▷▷빌 ◎◎동 ●●●호, ○동 ▲▲▲호, ■■■호에 관하여 소외 13이 그의 아들인 피고 1과 명의신탁약정을 하고 피고 1 명의로, ○동 ◇◇◇호, ☆☆☆호에 관하여 소외 1이 그의 처남 소외 3과 명의신탁약정을 하고 소외 3 명의로, ○동 △△△호, □□□호에 관하여 소외 2가 그의 아내 피고 2와 명의신탁약정을 하고 피고 2 명의로 각 소유권이전등기를 마친 사실을 인정할 수 있다.

Therefore, barring any special circumstance, each of the registrations in the name of Nonparty 3, Defendant 1, and Defendant 2, as a title trust registration, is in violation of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”), and is invalid. The registration in the name of Defendant 4 and Defendant 3, which was based on the registration in the name of Nonparty 3, invalid, is also a registration of invalidity of cause.

B. Determination as to the defendants' assertion

1) The plaintiff's claim of this case violates res judicata of the conciliation of this case

The Defendants asserted that the registration of transfer of ownership against the building of this case was completed through the coordination of this case by Nonparty 3, Defendant 2, and Defendant 1. The Defendants asserted that the Plaintiff’s claim of this case against the contents of the conciliation of this case is groundless, since they were successors subsequent to the closure of pleadings (Article 218(1) of the Civil Procedure Act) and the res judicata following the conciliation of this case has not been effective.

First of all, as seen earlier, Nonparty 3, Defendant 2, and Defendant 1 did not receive the right to claim ownership transfer under the instant conciliation procedure from Nonparty 1 and completed the registration thereof, but rather, Nonparty 3 was based on the title trust agreement with Nonparty 1, and Defendant 2 was based on the title trust agreement with Nonparty 2, the husband, and Defendant 1 received the registration of ownership transfer under the title trust agreement with Nonparty 13, the father, and Defendant 1 received the registration of ownership transfer with Nonparty 13. Accordingly, the subject matter of lawsuit does not constitute a successor as the assignee of the subject matter of lawsuit itself.

Furthermore, in a case where the subject matter of a prior suit is a claim for ownership transfer registration that has the nature of a claim in the nature of a claim in the prior suit, the person to whom the ownership registration on the subject matter has been transferred after the closing of argument in the prior suit does not fall under a successor after the closing of argument in the prior suit (see Supreme Court Decision 2010Da2558, May 10, 2012). As seen earlier, Nonparty 1’s right to claim ownership transfer registration based on the conciliation of this case against the Plaintiff is not based on a real right right based on the premise that Nonparty 1 is the owner, rather than on the premise that Nonparty 1 is the owner of the building in the instant case. Accordingly, Nonparty 3, Defendant 2, and Defendant 1, who completed the ownership transfer registration after the completion of conciliation of

Therefore, the above argument of the defendants is without merit.

2) The assertion that the registration in Defendant 2’s name is valid registration in accordance with the substantive legal relationship

Defendant 2 asserts that the registration of transfer of ownership in his name was made in the form of an intermediate omission registration pursuant to the agreement on transfer of ownership based on the instant conciliation and the agreement on transfer of ownership between Nonparty 1 and Nonparty 2 and Defendant 2, and that it is a valid registration consistent with the substantive legal relationship.

However, as seen earlier, the registration of transfer of ownership with Defendant 2 was completed in a title trust agreement with Nonparty 2, the husband, and the actual ownership is deemed to exist with Nonparty 2, the husband. Therefore, the registration with Defendant 2 cannot be deemed a valid registration consistent with the substantive legal relationship. Therefore, the above assertion by Defendant 2 is without merit.

3) Defendant 2’s assertion that it is a valid registration under the Real Estate Real Name Act as Nonparty 2’s spouse.

Even if Defendant 2’s registration of transfer of ownership pursuant to a title trust agreement with Nonparty 2, the husband, was made, Article 8 of the Real Estate Real Name Act provides that registration of real rights to real estate under the spouse’s name shall not be deemed null and void if it is not for the purpose of evading taxes, evading compulsory execution, or evading statutory restrictions. The Defendant 2’s registration of transfer of ownership does not fall under any of the above, and thus is a valid title trust.

However, according to the statement in Gap evidence No. 22, it can be acknowledged that the non-party 2 decided to own the bonds of this case among the buildings of this case, and the non-party 2 decided to transfer ownership under the name of defendant 2, who is his wife, due to bad credit. Furthermore, the above purport is also stated in the third page of the briefs submitted by the defendants in this case.

Thus, the non-party 2 shall be deemed to have completed the registration of ownership transfer under the name of the defendant 2, who is the wife for the evasion of compulsory execution. Thus, this cannot be deemed to have been an effective title trust pursuant to Article 8 of the Real Estate Real Name Act, and therefore, the above assertion by the defendant 2

4) Defendant 3’s assertion that it is a third party protected under the Real Estate Real Name Act

Defendant 3 asserts that even if the registration completed in the future of Nonparty 3 is null and void as a title trust registration, Defendant 3 cannot oppose Defendant 3, a third party pursuant to Article 4(3) of the Real Estate Real Name Act.

According to Article 4(1) and the main text of Article 4(2) of the Real Estate Real Name Act, a title trust agreement and any change in real rights to real estate made pursuant thereto are null and void, but the invalidation thereof cannot be asserted against a third party. However, the term "third party" refers to a person who has a new interest with him/her on the basis of being a real right holder (see Supreme Court Decision 2001Da5371, Jun. 26, 2001). On the other hand, a person who entered into a contract with a title truster for acquiring real rights to real estate and received only a title registration from the title trustee does not constitute a third party under the above legal provision. Thus, the person is not entitled to assert the validity of his/her registration made based on the invalid title trust registration under the provisions of Article 4(3) of the Act, regardless of the fact that his/her registration is in conformity with the substantive relationship (see Supreme Court Decision 2001Da47772, Aug. 30, 2004).

위 기초사실에 제1심 증인 소외 14의 증언, 제1심 법원의 피고 3 본인신문 결과와 변론 전체의 취지를 보태어 보면, 소외 14가 명의신탁자인 소외 1과 이 사건 건물 중 ▷▷빌 ○동 ◇◇◇호에 관한 매매계약을 체결하고 등기명의를 명의수탁자인 소외 3으로부터 소외 14의 명의수탁자인 피고 3 앞으로 경료받은 사실을 인정할 수 있다. 따라서 피고 3은 소외 14의 명의수탁자일 뿐, 위 부동산실명법 제4조 제3항 의 제3자(명의수탁자가 물권자임을 기초로 그와의 사이에 새로운 이해관계를 맺은 사람, 즉 소외 3이 소유권자임을 전제로 소외 3과 매매계약을 체결한 사람)에 해당하지 아니하므로 피고 3의 위 주장은 이유 없다

5) Ascertainment of violation of the good faith principle

The Defendants asserted that the Plaintiff is a title trust in this case, even though the Plaintiff was aware of the title trust of Nonparty 1, Nonparty 2, and Nonparty 13 and agreed thereto, and completed each registration under the name of Nonparty 3, Defendant 2, and Defendant 1, and asserted that the instant lawsuit is contrary to the principle of good faith.

However, according to the Defendants’ assertion, inasmuch as the seller becomes aware of the purchaser’s title trust, the seller entered into a sales contract with the purchaser, but the so-called middle omission registration that transfers only the name of the title trustee to the title trustee becomes null and void, and the seller is unable to file a claim for cancellation of the registration under the name of the title trustee, despite the seller’s ownership. This result in the omission of the purport of the law invalidating the registration under the name of the title trustee under the Real Estate Real Name Act (main sentence of Article 4(2) of the same Act)

C. Sub-committee

Therefore, with respect to each real estate listed in the separate sheet Nos. 1 and 7, Defendant 2 is liable for each real estate listed in the separate sheet No. 2 and 4, Defendant 3 is liable for each real estate listed in the separate sheet No. 3, and Defendant 4 is liable for each real estate listed in the separate sheet No. 6 to perform the procedure for ownership transfer registration based on the restoration of real name

3. Conclusion

Therefore, the plaintiff's claim of this case against the defendants is accepted in its reasoning, and the judgment of the court of first instance is just in its conclusion, and the defendants' appeal is dismissed in its entirety as it is without merit. It is so decided as per Disposition.

Judges Kim Sung-soo (Presiding Justice)