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(영문) 서울서부지방법원 2012. 02. 16. 선고 2011나6049 판결
명의신탁약정에 따라 부동산의 소유자명의를 이전받은 것으로 봄이 상당함[국승]
Case Number of the immediately preceding lawsuit

Seoul Western District Court 2010Kadan29020 ( October 12, 2011)

Title

It is reasonable to deem that a real estate owner’s name was transferred according to a title trust agreement.

Summary

It is reasonable to view that a real estate owner’s name has been transferred according to a title trust agreement in light of the fact that it appears that a spouse borrowed the name of his/her spouse in the process of repaying debts for the guarantee of debts and restoring the name of the owner, and that his/her spouse has no legal grounds to acquire

Related statutes

Article 30 of the National Tax Collection Act

Cases

2011Na6049 Revocation, etc. of Fraudulent Act

Plaintiff, Appellant

- Incidental appellant

Korea

Defendant, appellant and appellant

- Incidental appellant

Shin XX

Judgment of the first instance court

Seoul Western District Court Decision 2010Kadan29020 Decided April 12, 2011

Conclusion of Pleadings

February 2, 2012

Imposition of Judgment

February 16, 2012

Text

1. The plaintiff's incidental appeal against the defendant Lee A in the first instance shall be dismissed.

2. The defendant's appeal is dismissed.

3. Costs arising from an appeal and an incidental appeal shall be borne by each person;

Purport of claim and appeal

1. Purport of claim

A. The primary purport of the claim

1) The rightB and the defendant Lee In-bok (hereinafter referred to as "A") of the first instance trial with respect to the real estate stated in the separate sheet shall be revoked as of August 9, 2005 and the sales contract concluded on May 11, 2009. The defendant will implement the procedures for the cancellation of the ownership transfer registration completed on July 20, 2009 by the Seoul Western District Court Seodaemun-gu Office of Registry of the Seoul Western District Court as of the said real estate.

2) The contract of donation of KRW 147,175,00,00, which was concluded on July 20, 2009 between the defendant and the rightB shall be revoked within the scope of KRW 109,403,230. The defendant shall pay to the plaintiff 109,403,230 with the interest of KRW 5% per annum from the day following this decision to the day of full payment.

B. Preliminary purport of claim

The defendant will implement the procedure for the registration of ownership transfer on the ground of the cancellation of title trust on the date of service of the copy of the claim and the application for change of the cause of the claim as of March 11, 201 with respect to the real estate stated in the attached Form B to the rightB.

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

3. Purport of incidental appeal;

The part of the judgment of the first instance against the plaintiff shall be revoked.

A. The primary purport of the claim

The defendant will implement the procedure for the registration of ownership transfer on the ground of the cancellation of title trust on the date of service of the copy of the claim and the application for change of the cause of the claim as of March 11, 201 with respect to the real estate stated in the attached Form B to the rightB.

B. Preliminary purport of claim

1) With respect to thisA

The purchase and sale reservation made on August 9, 2005 and the purchase and sale contract made on May 11, 2009 with respect to the real estate stated in the separate sheet between the rightB and thisA shall be revoked. ThisA will implement to the rightB each procedure for the cancellation of ownership transfer registration completed on August 9, 2005 by the Seoul Western District Court Registry of Seodaemun-gu Seoul District Court on the said real estate, the provisional registration of the right to claim ownership transfer registration completed on August 9, 2005, and each procedure for the cancellation of ownership transfer registration completed on June 2, 2009 by the receipt No. 19650 of the said registry.

2) As to the defendant

A) The purchase and sale reservation concluded on August 9, 2005 and the sales contract concluded on May 11, 2009 with respect to the real estate stated in the separate sheet between the competentB and EA is revoked. The defendant will implement to EA the procedures for the cancellation of ownership transfer registration completed on July 20, 2009 by the Seodaemun District Court (Seoul Western District Court) registry office (26092) with respect to the said real estate.

B) The contract of donation of KRW 147,175,00 between the defendant and the rightB on July 20, 2009 shall be revoked within the scope of KRW 109,403,230. The defendant shall pay to the plaintiff 109,403,230 with the interest of KRW 5% per annum from the day following this judgment to the day of full payment.

Reasons

1. Whether the plaintiff's incidental appeal against thisA is legitimate

At the first instance court, the Plaintiff filed a claim for the cancellation of fraudulent act (contract for sale and purchase, and sales contract) and restitution against the Defendant, and the claim for the cancellation and restitution of the fraudulent act (contract for monetary donation) between the rightB and the Defendant, and the conjunctively filed a claim for the registration of ownership transfer against the Defendant for the registration of ownership transfer of the attached real estate (hereinafter referred to as the “instant real estate”) based on the cancellation of title trust by subrogation of the rightB against the Defendant in lieu of the rightB. Accordingly, the first instance court dismissed all the primary claims against the Defendant and accepted only the ancillary claims against the Defendant. The Plaintiff appealed only against the Defendant. After the lapse of the period of appeal at the first instance court, the Plaintiff filed an incidental appeal against the Defendant both this and the Defendant as stated in the purport of the incidental appeal.

In ordinary co-litigants, there is no impact on other co-litigants, and only the part concerning the co-litigants appealed in the judgment of the court of first instance shall be transferred to the appellate court, and even after the right to appeal by the appellant has extinguished and the right to appeal by the appellant becomes unable to file an independent appeal, the incidental appeal is a system that seeks to change the original judgment in favor of himself/herself on the premise that the other party raised an appeal by him/her exists, and the part concerning the plaintiff and the LeeA in the judgment of first instance of this case concerning the plaintiff in the judgment of first instance of this case are not subject to a trial due to the lack of all appeals by both the plaintiff and the LeeA, and thus they are not subject to a trial due to the fact that thisA did not bring an appeal (the interest of the appeal is nonexistent in the case of Lee, who won the whole winning in the judgment of the first instance). It is unlawful

2. Plaintiff’s claim against the Defendant

(a) Object and order of judgment;

Since the defendant appealed against the judgment of the court of first instance that accepted only the conjunctive claim against the defendant (the claim for cancellation of ownership transfer registration based on the cancellation of title trust), the scope of trial at the court of first instance is limited to the scope of the defendant's objection and is limited to the legitimacy of the judgment of the court of first instance that accepted the conjunctive claim (see, e.g., Supreme Court Decision 94Da31624, Feb. 10, 1995). However, since the plaintiff filed an incidental appeal against the defendant, the plaintiff has changed the order of judgment by making the conjunctive claim cited in the court of first instance as the primary claim, and the plaintiff has changed the order of judgment by making the conjunctive claim, which was rejected in the court of first instance, as the plaintiff seeks the judgment on the primary claim against the defendant, which was claimed in the court of first instance in preparation for citing the defendant's appeal as to the conjunctive claim.

B. Judgment on the conjunctive claim of the first instance court

1) Facts of recognition

A) The rightB, who was the owner of the instant real estate, obtained a loan of KRW 25 million from thisA operating the lending company. On September 11, 2007, the rightB agreed on the extension of the lending period to the effect that 3% of the interest rate per month, 5.5% per month, and 9 February 2008, when the lending period expires.

(B) On August 9, 2005, the rightB completed the provisional registration of the right to claim transfer of ownership (hereinafter referred to as the "provisional registration of this case") with respect to the real estate of this case as security for the above principal and interest of loan obligation of this case on August 9, 2005, and thereafter, the rightB delayed the payment of the above principal and interest of loan, and this A completed the principal registration based on the provisional registration of this case on June 2, 2009 to recover the above loan through resale (hereinafter referred to as "the principal registration of this case was completed on June 2, 2009"), upon request of the rightB to transfer the ownership of the real estate of this case to the defendant, who is his principal and interest of the loan until this registration of this case was made on July 20, 2009.

D) From November 7, 2001 to February 5, 2009, the rightB operated the wholesale and retail business with the trade name of 00-0 A, 00 B, YE, and the amount of delinquent taxes up to December 31, 2009, the amount of delinquent taxes exceeds 109,403,230 won, and there was no particular property other than the real estate in this case.

[Ground for Recognition: Facts without dispute, entry of Gap evidence (including a provisional number) through 3, 5, and 6, and purport of the whole pleadings]

2) Determination

The Plaintiff, while paying the principal and interest of the loan to thisA, had thisA restore the registration of ownership transfer of the instant real estate owned by the Plaintiff to the Defendant, who is his wife, is in accordance with the title trust agreement between the rightB and the Defendant. Therefore, the Plaintiff, on behalf of the rightB, terminated the above title trust agreement and seeks for the transfer of ownership.

In this regard, the defendant purchased the real estate of this case in accordance with the normal sales contract with thisA and paid the purchase price by receiving the loan. The defendant asserts that there was no title trust agreement between the defendant and the rightB.

The title trust relationship is not necessarily established by the explicit contract between the truster and the trustee, but can also be established by implied agreement (see Supreme Court Decision 2000Da49091, Jan. 5, 2001).

(3) According to the following: (a) the Defendant, at the time of filing an application for the registration of ownership transfer with respect to the instant real estate on July 20, 2009; (b) the sales contract (the contract amount of KRW 50 million shall be paid at the time of the contract; and (c) the remainder of KRW 460 million shall be paid at the time of August 8, 2009; and (b) the Defendant, at the time of filing of an application for the registration of ownership transfer with respect to the instant real estate on July 20, 209, paid KRW 30,700,000 to the Defendant for the payment of the purchase proceeds of the instant real estate on July 20, 209; and (c) the Defendant, at the time of filing of an application for the registration of ownership transfer with respect to the instant real estate on July 205, 209. It is found that there is no evidence to acknowledge that the Defendant paid KRW 27832,829,209.7.

Meanwhile, the fact that the purport of the claim as of March 11, 201 and a copy of the application for change of the cause of the claim as of March 16, 2011 delivered to the defendant on March 16, 2011 is apparent in the record that the plaintiff, who has the right to claim KRW 109,403,230 against the rightB, has been subrogated to the defendant, by subrogation of the rightB in the state of insolvency. Thus, the defendant is obliged to implement the registration procedure for transfer of ownership for the reason of the above termination.

C. Sub-decision

The plaintiff's claim for the execution of the procedure for ownership transfer registration based on the cancellation of title trust against the defendant cited in the first instance trial is reasonable, and therefore there is no need to separately determine the plaintiff's incidental appeal against the defendant in preparation for the case where the above claim is dismissed.

3. Conclusion

The incidental appeal against the plaintiff's Lee-A is dismissed as unlawful, and the plaintiff's conjunctive claim against the defendant is accepted as reasonable, and the judgment of the court of first instance on this conclusion is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

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