Plaintiff (Attorney Kim Si-soo, Counsel for the plaintiff-appellant)

Defendant 1 and five others (Law Firm Barun, Attorneys Kim Young-hoon, Counsel for the defendant-appellant)

August 21, 2009

1. The plaintiff's lawsuit against the defendant 2, 3, 4, and 5 shall be dismissed respectively.

2.With respect to shares 472.96/1,705 of the land listed in the Schedule,

A. Defendant 1 was caused by sale on August 5, 198 to Defendant 6:

B. Defendant 6 caused the Plaintiff’s share agreement on April 22, 1991:

Each procedure for the registration of ownership transfer shall be implemented.

3. The plaintiff's remaining claims against the defendant 1 are dismissed.

4. Of the costs of lawsuit, the part arising between the Plaintiff and the Defendant 2, 3, 4, and 5 is to be borne by the Plaintiff; the part arising between the Plaintiff and the Defendant 6 is to be borne by the said Defendant; the part arising between the Plaintiff and the Defendant 1 is to be borne by the Plaintiff; and

The judgment as referred to in Paragraph (b) and Paragraph (b) of Article 2-2-2 and the defendant 3, 2, and 4 are as follows: (a) each transfer of ownership completed on December 29, 198 by the Daejeon District Court pursuant to No. 72163 on December 29, 198 with respect to shares of one-fourth (1/4) in the land listed in the separate sheet to Defendant 1; and (b) Defendant 5 executes each transfer of ownership and each cancellation registration procedure completed on July 25, 1996 with respect to shares of 470.78/1,705 out of shares in the land listed in the separate sheet to Defendant 1 on July 25, 1996; and (c) Defendant 1 executes with respect to shares of 897.03/1,705 of the land listed in the separate sheet to Defendant 6 on August 5, 198.

1. Determination on the Plaintiff’s claim against Defendant 1 and 6

(a) Description of the claim;

The Plaintiff’s joint document (Evidence A No. 5) as of April 22, 1991 constitutes a share allocation agreement. The Plaintiff’s share ratio accordingly constitutes 600/2,010 shares. If the Plaintiff calculates shares to be received from Defendant 6 with respect to the instant land, then 508.96/1,705 shares (i.e., 705 square meters x 600/2,010), and Defendant 6 shall implement the procedure for the transfer registration of ownership as to the instant land (i.e., 472.96/1,705 shares (= 508.96-36) with respect to the remainder of 36/1,705 shares, excluding shares already transferred to the Plaintiff among the instant land, and (ii) the Plaintiff’s right to claim the transfer registration of ownership as to the instant land under Defendant 2,3, and 470/4708/1,705 shares under Defendant 5’s name among the instant land ownership transfer registration under the title 7160/6.7.

(b) Applicable provisions;

Articles 208(3)2 and 150(3) of the Civil Procedure Act (Judgment by deemed as Confession)

C. Determination

The creditor's subrogation right cannot be exercised beyond the scope of the preserved claim. According to the above facts, with respect to the share of 472.96/1,705 of the land of this case, the defendant 1 is liable to the plaintiff for the registration of transfer of ownership on August 5, 1988, and the defendant 6 is liable to the plaintiff for the registration of transfer of ownership on April 22, 1991, and the claim against the defendant 1 against the defendant 1 exceeding the above scope of recognition is without merit.

2. Facts of recognition;

A. On August 5, 198, Defendant 6, Nonparty 5, 3, and 6, who are one of them, purchased forest land of 6,645 square meters (2,010 square meters; hereinafter “land before subdivision”) from Chungcheongnam-gun, Chungcheongnam-gun, which was owned by Defendant 1 (hereinafter “Defendant 2 omitted), and concluded a sales contract with Defendant 1 and the said land at KRW 320,000,000 on August 5, 198 and paid the down payment to Defendant 1 (However, in the contract, the buyer was written as Nonparty 5 and 5).

B. However, when the land before subdivision was designated as a land transaction permission area around September 1988, the non-party 5, etc. anticipated to make it difficult to resell the said land difficult, and the non-party 6, etc. were to waive the down payment and cancel the said purchase and sale contract. However, since the money he borne out of the down payment 28 million won was 16 million won or less, the defendant 6, who was her friencing to the defendant 1, was friencing the circumstances, the above sales contract was terminated by the agreement, but the down payment was returned to 28 million won.

C. As to this, Defendant 1 consented to the cancellation of the above sales contract, but the down payment did not return the said contract to the third party to sell the land before the split-off and return it to the money received. Defendant 5, Defendant 6, who had been said to have invested money in purchasing the land before split-off on behalf of Nonparty 5, etc. from Defendant 6, and he also recommended the Plaintiff, Nonparty 1, and 2, who had been known prior to the said cancellation, to make an investment.

D. Around October 11, 198, Defendant 6 entered into a sales contract with Defendant 1 for the pre-division of land (hereinafter “instant sales contract”) with the amount of KRW 292 million calculated by subtracting the down payment already paid from the amount of KRW 320 million for the pre-division of land (hereinafter “instant sales contract”). However, the contract (A2) entered the date of the conclusion of the contract, retroactively, into the date of August 5, 198.

E. After that, on October 31, 1988, Defendant 6 entrusted the registration name with Defendant 1 to Defendant 1, without stating specific circumstances, such as who is the actual purchaser of the land before subdivision, and requested the purchaser to obtain a certificate of personal seal impression for real estate sale with Defendant 3 and three others. On December 29, 198, Defendant 6 entrusted the registration name to Defendant 2, 3, 4, and 3 (hereinafter collectively referred to as Defendant 3, etc. including the above four persons) with respect to each of the above 1/4 shares out of the above land, and completed the registration of ownership transfer in the above 4th, while the registration of ownership transfer was cancelled on December 29, 1988 with respect to the above 4 shares owned by Defendant 4, including the above Defendant 3, the Plaintiff and Nonparty 1, etc. on December 29, 198, the Plaintiff and Nonparty 1 and Nonparty 4 on April 198, 198.

F. After that, on April 22, 191, the Plaintiff, Defendant 5, Nonparty 6, Nonparty 1, and Nonparty 2 drafted a document confirming that the Plaintiff owns 600/2,010 shares of land before subdivision, Defendant 5 shares of 450/2,010 shares, Defendant 6 shares of 460/2,010 shares, Nonparty 1 shares of 130/2,010 shares, and Nonparty 2 shares of 370/2,010 shares (hereinafter “instant joint document”).

G. Meanwhile, on the other hand, the land before the subdivision was divided into a registration conversion of forest land of 6,645 square meters in Daejeon-gu, Daejeon (hereinafter omitted) on February 11, 1993. The said land was divided into a forest land of 2,329 square meters in the said land on March 24, 1994, and a forest of 2,61 square meters in the said land (hereinafter omitted) on September 2, 1994, and a forest of 2,611 square meters in the said land (hereinafter omitted) on September 2, 1994, and eventually, the said land was divided into a forest of 1,705 square meters in the said area (hereinafter referred to as “instant land”).

H. Around 1994, the Korea High-Speed Construction Authority established a forest of 2,329 square meters and 2,611 square meters of forest of 3 omitted) as well as 2,611 square meters of forest of 2,329 square meters as well as 497,537,500 won as compensation for the said forest of 459,37,500 won as compensation for the said forest of 497,537,500 won as well as compensation for the said forest of 497,50 won as compensation for the said forest of 1994 (hereinafter 4 omitted).

I. After that, on July 25, 1996 with respect to each of the shares of Defendant 3 and 2 among the land in this case, the registration of ownership transfer was completed on the ground of “the share sale on July 20, 1996,” and with respect to the shares of Nonparty 3, the registration of ownership transfer was completed on June 29, 2004 on the ground of “the sale on June 29, 2004,” and Defendant 6 completed the registration of ownership transfer on the ground of “the sale on June 29, 2004.” On December 20, 2006, Defendant 6 completed the registration of ownership transfer on the ground of “the sale on December 11, 2006,” and Defendant 5 completed the registration of ownership transfer on the ground of “the shares of Defendant 5 2/4, Defendant 1/4, Defendant 6, Defendant 39, Defendant 1/4, and the shares of each of the Plaintiff 36/1,575/1.

(Evidence) Evidence Nos. 1 through 7, Eul evidence Nos. 1, Eul evidence Nos. 2, Eul evidence Nos. 4, Eul evidence Nos. 8 through 10, Eul evidence Nos. 30 through 33 (including various numbers), the purport of the whole pleadings.

3. Determination as to the Plaintiff’s claim against Defendant 3, 4, 5, and 2

A. The plaintiff's assertion

Defendant 6 entered into the instant sales contract with Defendant 1. In this regard, the Plaintiff, Defendant 6, Nonparty 5, Nonparty 1, and Defendant 2 agreed to hold ownership of 600/2,010 shares of the instant land (=508.96/1,705) (i.e., share distribution agreement on April 22, 1991). Meanwhile, one-fourth share transfer registration in the names of Defendant 2, 3, and 4, respectively, and one-fourth share transfer registration in the names of Defendants 2, 3, and 2, and 3, respectively, and the share transfer registration in the names of Defendants 5, 470.78/1,705, which exceed the legitimate share transfer registration in the names of Defendants 2, 3, and 2, and 3, were null and void based on each title trust agreement. Thus, the Plaintiff’s right to claim ownership transfer registration in sequence against Defendant 6 against Defendant 1, Defendant 6, in order to cancel the share transfer registration.

B. Determination

Therefore, we examine whether the plaintiff's right to claim the transfer of shares against the defendant 6, which is subject to the exercise of the creditor's subrogation right of this case, exists.

Ultimately, the issue of this case is whether the common document of this case is a share allocation agreement with respect to the ownership of the land before division, and whether it is merely an expression of its share as a simple monetary investment agreement.

However, as seen earlier, each investor’s shares are specified in the common document of this case. However, the following circumstances are as follows: (i) the Plaintiff, Defendant 5, Nonparty 1, and Defendant 2 have invested in Defendant 6 for the purpose of acquiring profits from the market price to be obtained by again selling the land before subdivision at the ratio of their respective investment shares; (ii) the reasons for preparing the common document of this case are to clarify five investors’ shares; (iii) the registration of transfer or registration of investment was not sought for a long time after being placed in the name of relatives of Defendant 6 who are not related to the Plaintiff including the title trustee; (iv) the remaining part of the land, other than the land of this case, was purchased before subdivision; and (v) the compensation procedure for the sale and purchase between the Plaintiff and the title trustee; and (v) the compensation procedure for the sale and purchase of the land, including the Plaintiff’s ownership; and (v) the decision of the sale and purchase agreement between the Plaintiff and the Plaintiff 6 investors.

Therefore, the plaintiff does not have the right to claim the transfer of shares against the defendant 6 who is entitled to exercise the creditor's subrogation right, and the plaintiff's lawsuit of this case against the defendant 3, 4, 5, and 2 is unlawful due to the deficiency of the preserved claim, which is a requirement for exercising the creditor's subrogation right.

4. Conclusion

Therefore, the plaintiff's lawsuit against the defendant 2, 3, 4, and 5 is dismissed, and the plaintiff's claim against the defendant 6 is accepted with merit. The plaintiff's claim against the defendant 1 is accepted within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Kim Jong-soo