[1] Legal relations where a construction business operator, who purchased another's site and constructed a building in his/her own effort and material without paying the purchase price, as the owner of the building site

[2] In the case of paragraph (1) above, whether a construction business operator may request cancellation of the above preservation registration against a site owner after the registration of preservation of ownership on a building in the name of a site owner has been completed and before the payment of the price is made (negative)

[3] The case reversing the judgment of the court below on the ground that there was an error of law as to whether the registration of preservation of ownership for newly constructed buildings in the name of a landowner is for securing the price of a site or whether a title trust relation

[1] In a case where a construction business operator constructs a building in his/her effort and material without paying the purchase price of another person's site and then sets the name of the building site owner, the registration of ownership preservation in the name of the building permit holder shall be made unless there are special circumstances pursuant to Article 131 of the Registration of Real Estate Act, in light of the fact that the purpose thereof is to secure the obligation of the site price.

[2] If a building permit has been granted under the name of the owner of the site for securing the payment obligation, even if the construction contractor had acquired the building at a cost, it shall be deemed that the security right has been established by a legal act because the registration of ownership preservation has been completed in the name of the owner of the site even if the construction contractor had acquired the building at a cost. Therefore, unless the payment obligation, which

[3] The case reversing the judgment of the court below on the ground that there was an error of law as to whether the registration of preservation of ownership as to the newly constructed building in the landowner's name is for securing the land price or whether the title trust relation is established, in case where a construction business operator completed most of the construction permission at his own expense.

[1] Articles 187 and 64 of the Civil Act / [2] Articles 1, 2 subparagraph 1, and 11 of the Provisional Registration Security, etc. Act / [3] Article 126 of the Civil Procedure Act

[1] [2] Supreme Court Decision 84Da2234 delivered on May 28, 1985 (Gong1985, 909) / [1] Supreme Court Decision 84Da2452 delivered on July 9, 1985 (Gong1985, 1110), Supreme Court Decision 86Da60 delivered on June 23, 1987 (Gong1987, 1205), Supreme Court Decision 89Da1884 delivered on April 24, 1990 (Gong190, 1135) / [2] Supreme Court Decision 91Da2505 delivered on August 18, 192 (Gong192, 2734), Supreme Court Decision 90Da309794 delivered on June 28, 1994 (Gong1994, 2734).

Park Jae-in et al. (Attorneys Kim Jong-soo, Counsel for the plaintiff-appellant)

Yellow-ro (Attorney Go-do, Counsel for the defendant-appellant)

Daegu High Court Decision 96Na458 delivered on December 12, 1996

The judgment below is reversed, and the case is remanded to the Daegu High Court.

We examine the grounds of appeal.

On the first ground for appeal

In light of the records, the court below, based on the evidences, purchased 300,000,000 square meters from the defendant around August 1992 for the purpose of constructing and selling multi-household houses by the co-defendants of the court of first instance, from the defendant around 100,00,00 in 331.6 square meters (hereinafter "the land in this case"), and the above do not constitute a violation of the rules of evidence that the above do not constitute a violation of the rules of evidence that the construction of this case was completed on the land in this case by constructing and selling a multi-household house on the land in this case. The above do not constitute a violation of the rules of evidence that the above do not constitute a violation of the rules of evidence that the construction of this case was completed on the land in this case by obtaining a construction permit under the name of the defendant who is the owner of the land in this case, and that the construction of this case was completed on the land in this case by constructing a multi-household house with 10,000,000 won.

On the second ground for appeal

The court below acknowledged that registration of initial ownership was made under the name of the defendant on the ground that the above domination of the building in this case was the nominal trust on the ground that the above domination of the building in this case was the initial acquisition of the building in this case. However, in case where the construction business operator purchased another person's land and constructed a building by using his effort and materials on it without paying the price at all, and as a site owner, the registration of initial ownership should be made under the name of the title holder unless special circumstances exist pursuant to Article 131 of the Registration of Real Estate Act, the purpose of this case is to secure the site price liability, and it can be seen that the purpose of this case is to secure the payment of the site price, and even in this case, it would be to secure the payment of the building in this case's name by the testimony of the witness in the court below, and if the above construction permission was obtained under the name of the defendant for the purpose of securing the payment of the building in this case, the court below's assertion that the above construction permission was established under the name of the defendant.

With respect to the third and fourth points

According to the reasoning of the judgment below, although it is difficult to view the land of this case as a title trust to be the defendant, the court below judged that since the defendant completed the registration of ownership ownership of the land of this case, which is the site, while preserving ownership of the building of this case as a sectional ownership, and the ownership of the land of this case is in accordance with the disposition of the section for exclusive use as the right to use the site, if the title trust is terminated with respect to the building of this case, the effect of the title trust extends to the right to the site. This decision is based on the premise that the title trust relation was established with respect to the building of this case, but as seen earlier, it cannot be maintained in that the building of this case is not merely the title trust

Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices

Justices Lee Yong-hun (Presiding Justice)