[1] Where the existing title truster fails to make a real-name registration within the grace period under the Act on the Registration of Real Estate under Actual Titleholder’s Name, a written application for ownership transfer registration due to termination of title trust after the expiration of the grace period (negative)

[2] Whether the purport of Article 6 (1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name is to recognize a title truster’s right to claim for registration under private law against the title trustee, which was caused by the termination of title trust after the lapse

[1] According to the main sentence of Article 11(1), Article 12(1) and Article 4 of the Act on the Registration of Real Estate under Actual Titleholder’s Name, a title truster who has registered a real right to real estate under the title trust agreement prior to the enforcement of the Act on the Registration of Real Estate under Actual Titleholder’s Name shall make the actual name registration within the grace period. If a title truster fails to do so within the grace period, the title trust agreement shall be null and void since the expiration of the grace period, and any change in real right to real estate by the registration made under the title trust agreement shall also be null and void. Therefore, where it is evident that the title truster’s application for registration of ownership transfer for the reason of termination of the title trust agreement after the expiration of the grace period, cannot be legally permitted by the purport of the application itself, and the case of Article 5(2) of the Registration of Real Estate Act

[2] The purport that Article 6(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name provides that "the real right to the pertinent real estate shall be registered in its own name without delay to the title truster on whom the penalty surcharge is imposed," is merely that the title truster imposes an obligation under such public law. It cannot be deemed that the title truster created a private legal right so that he/she may directly file a claim for registration from the title trustee on the ground of the existing title trust agreement even though the existing title trust agreement and the registration under the title trustee’s name was invalidated.

[1] Article 5 subparagraph 2 of the Registration of Real Estate Act, Articles 4, 11(1), and 12(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name / [2] Articles 5(1), 6(1), and 12(2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name

[1] Supreme Court Order 89Ma645 dated November 30, 1989 (Gong1990, 448) Supreme Court Order 93Ma1645 dated November 29, 1993 (Gong1994Sang, 200) Supreme Court Order 95Ma1700 dated March 4, 1996 (Gong196Sang, 1189)

Kang Jong-man

Busan District Court Order 96Ra270 dated January 22, 1997

The reappeal is dismissed.

The grounds of reappeal are examined.

According to the records, the real estate of this case was registered under the name of the original leapex, and the registration of ownership transfer was completed on May 19, 1971 under the name of the non-party Gangseo-ro as of May 19, 197. The re-appellant, after the grace period under Article 11(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, applied for the registration of ownership transfer under the name of the non-party as of August 27, 1996 on the real estate of this case as of August 27, 1996, under the premise that the registration under the title trust agreement was made between the re-appellant on May 19, 191 and Gangwon-ro, and on the 29th of the same month, the registration officer dismissed the above application on May 29, 195.

According to the main sentence of Article 11(1), Articles 12(1) and 4 of the Act on the Registration of Real Estate under Actual Titleholder’s Name, a title truster who has registered a real right to real estate under the title trust agreement prior to the enforcement of the Act on the Registration of Real Estate under Actual Titleholder’s Name under the title trust agreement shall make a real name registration (the real right is registered under the title truster’s name) within the grace period, and where the real name registration is not made within the grace period, the title trust agreement shall be null and void from the date on which the grace period expires, and any change in the real right to real estate by the registration made under the title trust agreement shall also be null and void. Therefore, after the expiration of the grace period, the title trust agreement between the re-appellant and the Gangwon-do shall be null and void, and since it is obvious that the registration under the title trustee’s name may not be legally permitted by the purport of the application, the registration application in this case shall be dismissed.

Meanwhile, according to Articles 12(2), 5(1), 6(1), and 6(2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, as the re-appellant pointed out, a penalty equivalent to 30/100 of the value of the relevant real estate is imposed unless the title truster, who had the real right to the real estate registered in the name of the title trustee under the title trust agreement prior to the enforcement of the Act, registers the real right to the real estate under his/her own name without delay, and the person upon whom the penalty is imposed, shall register the real right to the real estate under his/her own name and impose the charge for compelling the performance on the violator. However, the purport that Article 6(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name requires the title truster to register the real right to the real estate under his/her own name without delay. Accordingly, even though the existing title trust agreement and the registration under the name of the title trustee have become null and void, it cannot be deemed that the title truster creates a private right directly from the title trust agreement.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as discussed herein.

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Final Young-young (Presiding Justice)