[1] In a case where a person who intends to purchase real estate in the real estate auction procedure agrees to obtain a decision of permission for sale under another person's name while he/she bears the purchase price, and thereby the permission for sale was granted, whether a title trust relationship is established between the person who acquires the ownership of real estate (i.e., nominal person)

[2] In a case where a title trustee, who was unaware of the existence of a title trust agreement under the so-called contract title trust prior to the enforcement of the Act on the Registration of Real Estate under Actual Titleholder’s Name, has completed the registration of ownership transfer and the title trustee acquired full ownership of the pertinent real estate after the grace period under the same Act has expired, the title trustee shall be entitled

[1] Where a person who intends to purchase real estate in the real estate auction procedure has obtained permission for sale under an agreement with another person by obtaining a decision of permission for sale under his/her own name when he/she bears the purchase price, the person who takes the position of purchaser in the auction procedure is bound to do so, and thus, the title holder of the real estate for auction purpose is entitled to acquire the ownership of the real estate regardless of who is actually responsible for the purchase price. In such cases, a title trust relationship is established between the

[2] Where a title trustee acquires the title of real estate pursuant to the title trust agreement before the enforcement of the Act on the Registration of Real Estate under Actual Titleholder's Name, the title truster could terminate the title trust agreement and acquire the ownership of the pertinent real estate at any time before the grace period stipulated in Article 11 of the said Act expires after the enforcement of the said Act, and the title truster could have cancelled the title trust agreement at any time before the said grace period expires without taking any measures such as real name, and thus the title trustee becomes null and void the title trust agreement under Articles 12 (1) and 4 of the said Act. On the other hand, the title trustee shall obtain full ownership of the pertinent real estate, and eventually the title trustee shall make the pertinent real estate unjust enrichment, and the title trustee shall not be obliged to return the pertinent real estate acquired by him/her to

[1] Article 103 of the Civil Act / [title trust] Article 135 of the Civil Execution Act / [2] Articles 3, 4, 11, and 12 of the Act on the Registration of Real Estate under Actual Titleholder's Name, Articles 741 and 747 of the Civil Act

[1] Supreme Court Decision 2005Da664 decided Apr. 29, 2005 (Gong2005Sang, 826) / [2] Supreme Court Decision 2000Da21123 decided Dec. 26, 2002 (Gong2003Sang, 452) Supreme Court Decision 2007Da17284 decided Jun. 14, 2007

Plaintiff (Law Firm Sejong, Attorneys double-luminous et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Yang Sung-il, Counsel for the defendant-appellant)

Seoul Northern District Court Decision 2008Na1499 Decided July 23, 2008

All the judgment below is reversed, and the case is remanded to Seoul Northern District Court Panel Division.

The plaintiff and the defendant's grounds of appeal are also examined.

1. Determination on whether title trust is held

Where a person who intends to purchase real estate in the real estate auction procedure agrees with another person to obtain a decision of permission for sale in his/her own name and to obtain a decision of permission for sale under another person's name, and permission for sale has been granted in the auction procedure, the person who is held in the position of the purchaser is the title holder, and thus the ownership of the real estate for the purpose of auction is acquired by the title holder regardless of who is the person who actually bears the purchase price. In such cases, a title trust relationship is established between the person who bears the purchase price and the person who lends the name (see Supreme Court Decision 2005Da664

According to the reasoning of the judgment of the court below, as shown in its judgment, the court below: (a) as to the land of this case in which the defendant lent KRW 90 million to the plaintiff and the non-party 1, together with each of the plaintiff and the non-party 1, and he was established with the non-party 2 as a collateral for his lending KRW 30 million to the non-party 2; (b) as to the land of this case, the non-party 2 was decided to permit sale on June 7, 1993 and paid KRW 42.75 million for the proceeds of sale after the defendant was decided to permit sale on June 7, 1993; and (c) on May 23, 1993 before the above decision of permit for sale, the defendant prepared a "agreement on real payment" agreement with the plaintiff on May 23, 1993; and (d) prepared a title trust agreement again with the plaintiff on January 4, 1996, and interpreted the sale price and the share of the above land as 193 years 197/19.

Examining the evidence adopted by the court below in light of the records, this fact-finding and judgment of the court below is just and acceptable, and there is no violation of the rules of evidence against the rules of evidence, and there is no ground for appeal by the defendant disputing this.

2. Determination on the subject of return of unjust enrichment

The lower court dismissed the Plaintiff’s primary claim (the first selective claim) that “The Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”) went into force on July 1, 1995 and invalidated the above title trust agreement, and the Defendant acquired the above 1/2 shares out of the instant land without any legal cause, and thus, sought restitution of the said shares, on the ground that the Defendant, the title trustee, was not unjust enrichment due to the invalidity of the above title trust agreement, but only unjust enrichment for the proceeds received from the Plaintiff.”

However, the above judgment of the court below is hard to accept.

Where a title trustee acquires the title of real estate in accordance with the title trust agreement before the enforcement of the Real Estate Real Name Act, the title truster could cancel the title trust agreement and acquire the ownership of the real estate at any time until the grace period prescribed in Article 11 of the Real Estate Real Name Act expires after the enforcement of the said Act, but the title truster was able to cancel the title trust agreement and acquire the ownership of the real estate at any time after the grace period expires without taking any measures such as real name, etc., and the title trustee becomes null and void under Articles 12(1) and 4 of the said Act. Meanwhile, the title trustee shall be deemed to have obtained the complete ownership of the relevant real estate and eventually make the relevant real estate unjust enrichment. Since Articles 3 and 4 of the said Act prevent ownership of the real estate from being attributed to the title truster, the title trustee is obligated to return the relevant real estate acquired by him to the title truster (see Supreme Court Decision 200Da21123, Dec.

As recognized by the court below in this case, if the defendant obtained a decision to permit sale under the name of the defendant alone on June 7, 1993 in the auction procedure pursuant to the title trust agreement with the plaintiff and paid all the proceeds of sale around that time (the above payment was deemed to have existed before July 21, 1993 when considering that the distribution schedule was prepared as of July 21, 1993) and the ownership of the land in this case was transferred to the defendant who is the title trustee before the enforcement of the Real Estate Real Name Act. Thus, even in this case, the plaintiff, the title truster, was able to terminate the above title trust agreement and acquire the ownership of the above 1/2 shares at any time until the grace period under Article 11 expires after the enforcement of the Real Estate Real Name Act. Thus, the title trust agreement becomes null and void as of the expiration of the above grace period, and the defendant, the title trustee, acquired full ownership of the above land shares. Accordingly,

Nevertheless, the court below erred by misapprehending the relevant legal principles of the Real Estate Real Name Act and thereby adversely affected the conclusion of the judgment. Therefore, the plaintiff's appeal pointing this out has merit.

3. Conclusion

Therefore, without examining the plaintiff's grounds of appeal as to the remaining primary claims selectively joined and the defendant's remaining grounds of appeal as to the first preliminary claims cited in the original judgment, all of the judgment below is reversed, and the case is remanded to the original court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)