Plaintiff, the taking-over of Nonparty 1’s lawsuit

Defendant 1 and one other (Attorneys Kang Jong-soo et al., Counsel for the defendant-appellant)

September 16, 2014

Suwon District Court Decision 2013Da41942 Decided April 15, 2014

1. To revoke all the judgment of the first instance;

2. All of the instant lawsuits are dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

As to the real estate listed in the separate sheet No. 1 (hereinafter “real estate No. 1”), Defendant 1 performed the procedure for cancelling the registration of transfer of ownership, which was completed on October 28, 2013 with respect to the registration of transfer of ownership, which was completed on October 28, 2013 as the receipt of No. 66921, and Defendant 2 as to the real estate listed in the separate sheet No. 2 (hereinafter “No. 2 real estate”), as to the real estate listed in the separate sheet No. 1 together with the real estate No. 1, the Suwon District Court Branch Branch Branch of Sung-nam Branch of the Sungwon District Court (hereinafter “instant real estate”).

2. Purport of appeal

All of the judgment of the first instance is revoked, and all of the plaintiff's claims against the Defendants are dismissed.

1. Facts of recognition;

A. On June 29, 195, Jungil Co., Ltd. (hereinafter “Madro”) newly constructed the instant land and commercial buildings with the Korea Real Estate Trust Co., Ltd. (hereinafter “Korea Real Estate Trust Co., Ltd.”) as trust property (hereinafter “Korea Real Estate Trust”) and the truster and beneficiary, and the trustee entered into a trust agreement with the Korea Real Estate Trust Co., Ltd. (hereinafter “Korea Real Estate Trust”) with the purpose of trust (hereinafter “instant land”).

B. Around October 1995, Nonparty 3 entered into a lease agreement between Samdi, 170,016,000 won for the lease deposit for the first real estate, 20 years for the lease deposit for the second real estate, 85,904,000 won for the lease deposit, and 20 years for the lease deposit for the second real estate, and 20 years for the lease deposit. At that time, Nonparty 3 paid all the above lease deposit.

C. After that, the Korean Real Estate Trust completed the instant commercial building upon entering into a construction contract with Samsung Heavy Industries Co., Ltd., and completed the registration of ownership preservation on November 29, 200 on the instant commercial building including each of the instant real estate.

D. On December 31, 200, the trust term of the instant trust agreement expired, and the trust term of the instant trust agreement was not transferred to Samdidididididididididi, and on February 5, 2001, the Suwon District Court declared bankruptcy against the Korea Real Estate Trust on June 2, 2003 ( Suwon District Court 2003Hauhap4).

E. Nonparty 3 and Defendant 2 et al. filed a claim for refund of lease deposit following the termination of the lease agreement with respect to each of the instant real estate of this case against the trustee in bankruptcy of the Korean real estate trust due to nonperformance, and received a favorable judgment on December 16, 2009. The above judgment became final and conclusive around that time.

F. On October 24, 2011, Nonparty 2 was appointed as a new trustee with respect to the trust affairs under the instant trust agreement (Yanwon District Court Decision 2011No. 9). Nonparty 2, etc. requested the appointment of the administrator of trust property on the ground that Nonparty 2, among the creditors of trust property, managed the trust property only for the interests of one of the creditors of the Korea Technology Credit Guarantee Fund, and applied for the appointment of the administrator of trust property on November 30, 2012, on the ground that the interests between the trustee and the beneficiary conflict with each other.

G. Around October 2013, Nonparty 3 transferred the claim for the above security deposit to Defendant 1, and notified Nonparty 2 of the assignment of the claim.

H. Meanwhile, on October 10, 2013, Nonparty 2 entered into a contract with Defendant 1 on the payment in lieu of performing the obligation to return the above deposit deposit money (hereinafter “instant payment in lieu of performing the obligation to return the deposit deposit money”) and entered into between Defendant 2 on the payment in lieu of performing the obligation to transfer the pertinent real estate to Defendant 1 (hereinafter “instant payment in lieu”). On October 28, 2013, Defendant 1 entered into an ownership transfer registration (hereinafter “instant registration”) with the Suwon District Court Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Office of Sungwon District Court on October 28, 2013 as to the first real estate (hereinafter “instant first registration”); and Defendant 2 entered into an ownership transfer registration (hereinafter “instant registration”) with Defendant 6933 on October 28, 2013 as the registry office of Sungwon Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Office of the instant case (hereinafter “instant registration”).

[Ground of recognition] Facts without dispute, Gap 1, 2, 5, Eul 2, 20, 43, 44, 45, each entry, and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff

Since the Plaintiff was appointed as an administrator of trust property with respect to each of the instant real estate at the time of the instant payment contract, each of the instant payment contracts concluded between Nonparty 2 and the Defendants is null and void.

According to Article 34 of the Trust Act, a trustee may conduct an act contrary to the interests of the beneficiary only with the permission of the court. Each of the instant payment contracts is against the interests of the beneficiary, and there is no need to obtain the permission of the court. Accordingly, each of the instant registrations is null and void in violation of the statutes.

Therefore, each of the registrations of this case should be cancelled by invalid registration.

B. The Defendants

According to the instant trust agreement entered into between SamdiN and the Korea Real Estate Trust, the trustee still has the authority to manage the trust property, unless there is a conflict between the trustee and the beneficiary, in view of the fact that all the powers and responsibilities related to the trust business are delegated to the trustee, even if the trustee was appointed in accordance with the Trust Act, the trustee’s authority still exists in the part other than the purpose for which the trust property administrator is appointed, and the Plaintiff is appointed as the administrator of trust property on the ground that “the trustee Nonparty 2 acts only for the creditor and the Korea Technology Credit Guarantee Fund without paying a fair debt to the creditors,” and that “the trustee is acting only for the creditor,” the trustee still has the authority to manage the trust property. Therefore, even if the Plaintiff, who is the administrator of trust property, is not a party to the instant lawsuit, should be dismissed, and even if the Plaintiff is a party to the instant lawsuit, even if the Plaintiff is a party to the lawsuit,

3. Determination on this safety defense

According to Article 17(1), (4), and (5) of the Trust Act, in cases where the duties of the trustee are terminated or where it is inappropriate for the trustee to perform the trust affairs due to the conflict of interests between the trustee and the beneficiary, the court may appoint a trust property administrator upon the application of an interested person. The administrator of the trust property has the same rights and obligations as the trustee within the scope of the appointed purpose, and in cases where the administrator of the trust property is appointed, the administrator of the trust property becomes a party to a lawsuit concerning the trust property. Thus, in the lawsuit concerning the trust property, the administrator of the trust property has the same rights and obligations as the trustee and the standing to be a party to the lawsuit, but it is reasonable to view that the trustee still has the rights

Therefore, in addition to the fact that the market price of the first real estate as of May 15, 2012 near the point of time of the contract for the payment in substitutes of this case, which is recognized by the statement No. 46 as above, was appraised at KRW 129,00,000, and the market price of the second real estate at the time of May 15, 2012, the trustee Nonparty 2 entered into a contract for the payment in substitutes of this case with the Defendants as beneficial to the beneficiary (in the case of the first real estate, the existing claim extinguished due to the payment in substitutes of this case is the claim for the deposit of KRW 170,016,00 and the claim for the deposit of KRW 85,904,00 in the case of the second real estate, and the above act does not conflict with the interests between the trustee and the beneficiary. Thus, the trustee 2 still has the rights and obligations as the trustee and the standing to be a party to the relevant lawsuit, and there is no right and obligation as a trustee in the relevant litigation.

4. Conclusion

Therefore, the lawsuit of this case is unlawful because it is filed by a person who is not qualified as a party, and it shall be dismissed in its entirety. Since the judgment of the court of first instance is unfair with different conclusions, the judgment of the court of first instance shall be revoked in its entirety and the lawsuit of this case shall be dismissed in its entirety, and it

[Attachment Omission]

Judges Park Bo-uri (Presiding Judge)