Plaintiff (Supreme Court Decision 2000Na10000 delivered on September 1, 2000)

Defendant 1 and two others (Attorney Kim Sang-hoon, Counsel for the defendant-appellant)

September 28, 2010

Busan District Court Decision 2008Da72680 Decided October 16, 2009

1. The part against Defendants 2 and 3 of the judgment of the court of first instance and the part against Defendants 1 and the part against the plaintiff falling under the following order to perform shall be revoked:

A. The Plaintiff:

(1) Defendant 1 implements the procedure for the transfer registration of ownership based on the restoration of the true name with respect to the real estate listed in the attached list No. 1;

(2) Defendant 2 shall implement the procedure for the transfer registration of ownership based on the restoration of the true name with respect to the real estate listed in [Attachment List No. 2].

(3) As to the real estate listed in paragraph (2) of the attached Table No. 2, Defendant 3 will implement the procedure for registration cancellation of the transfer of ownership right claim filed on March 21, 2008 by the Busan District Court, Busan District Court, Busan District Court, and the registration procedure.

B. Defendant 1 shall pay to the Plaintiff 53,180,000 won with 5% interest per annum from October 12, 2007 to November 23, 2010, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal against the defendant 1 is dismissed.

3. Of the total litigation costs, the part arising between the Plaintiff and Defendant 1 shall be 20%, and the remainder shall be borne by Defendant 1, respectively, and the part arising between the Plaintiff, Defendant 2 and Defendant 3 shall be borne by Defendant 2 and Defendant 3.

4. The above paragraph 1-2 (b) may be provisionally executed.

The judgment of the first instance court is revoked. The above judgment and the defendant 1 pay to the plaintiff 78,180,000 won per annum from October 12, 2007 to the delivery date of a copy of the application for correction of the claim of this case, and 20% per annum from the next day to the day of complete payment.

1. Basic facts

The following facts do not conflict between the parties, or can be acknowledged by taking into account the whole purport of the arguments in each of the evidence Nos. 1-3, 2-1 through 4, 3, 12, 13, 14-1, 2, 18-1, 18-2, 1 and 23.

A. On February 25, 2005, A, an individual constructor, was merged on April 15, 2005, with the same (number 1 omitted) as 53 square meters and the same (number 2 omitted) large 40 square meters (number 1 omitted) large 53 square meters and the same (number 2 omitted) large 40 square meters and 40 square meters, which were the same (number 1 omitted) large 93 square meters and 93 square meters, which were the owners of the above (number 1 omitted)-Dong-dong (hereinafter referred to as the “instant land”). On February 25, 2005, A entered into a construction contract with Nonparty 1, the owner of the building in question, who is the owner of the above (number 1 omitted) of the said land, to newly construct the building 005 square meters on the said land (hereinafter referred to as the “instant land”).

B. Meanwhile, on April 19, 2005, part of the shares of the instant land were transferred to Nonparty 2 (2325/930 shares), Nonparty 3 (691/930 shares), Nonparty 4 (2325/9300 shares), and Defendant 1 (1634/9300 shares) respectively. On October 27, 2005, the shares of Nonparty 3 were transferred to Defendant 1; on November 1, 2005, the shares of Nonparty 2 were transferred to Nonparty 2; on November 1, 2005, Nonparty 1, Defendant 2, Defendant 1, and Nonparty 5 were jointly owned with shares of the instant land (2325/9300 shares); on April 1, 200, the list of the instant real estate leased to Nonparty 2, Nonparty 2, Defendant 1, and Defendant 2, Defendant 21 (205/9300 shares); and on January 26, 2005, the title of the instant land leased No.

C. On October 5, 2007, Defendant 1 entered into a sales contract with Nonparty 6 to set the sales amount of KRW 78,180,000 with respect to subparagraph 201 of the loan of this case, and completed the registration of ownership transfer in the name of Nonparty 6 on October 12, 2007.

D. As to Defendant 2 (Defendant 1’s private village), on March 21, 2008, the registration of the right to claim transfer of ownership is completed in the name of Defendant 3 (Defendant 1’s husband) on the ground of a pre-sale agreement as of March 5, 2008, with respect to subparagraph 101 of the loan of this case.

E. On June 24, 2008, after filing a lawsuit against the Defendants, on June 24, 2008, Party A transferred the ownership of the instant loan No. 101 and 202 and the status of a title truster as to the instant loan No. 101 and 202, and the right to claim damages against Defendant 1 as to the instant loan No. 201, and notified Defendant 1 and 2 of this on July 22, 2008.

F. On September 11, 2008, Gap died, and his inheritors agreed on the division of inherited property on June 16, 2009, under the premise that the ownership of the loan of this case 101 and 202 was owned by the deceased Gap, the plaintiff inherited it solely to the deceased Gap.

2. The parties' assertion

(1) The Plaintiff newly built the instant loan and acquired its ownership in original condition. Among them, Defendant 1, who was in an internal relationship with Defendant 1, 201 and 202, had registered each title trust with Defendant 1’s relative, and completed the registration of ownership transfer at will, Defendant 1, the trustee, sold the instant loan 201 to Nonparty 6 at KRW 78,180,000 and completed the registration of ownership transfer claim under Defendant 2’s name with respect to the instant loan 101. Since Defendant 2, the trustee, arbitrarily purchased the instant loan 101, 101, 202, and 202, Defendant 1, the truster, and Defendant 1, the trustee, had the duty to pay the Plaintiff for the damages of Defendant 20, 201, 201, 201, 200, 301, 201, 30, 201, 201, 201, 30, 201.

(2) As to this, the Defendants did not enter into a title trust agreement with Defendant 1 with the actual possession of Defendant 1. Rather, Defendant 1 and Defendant 1 had not been paid the money for the use of the existing construction cost, and Defendant 1 had been paid the money for the use of the new construction cost for the new construction of the loan of this case, and Defendant 1 had the completion of the new construction of the loan of this case with the payment for the loan to the deceased Party 101, 201, 202 under the name of Defendant 1 and Defendant 2 designated by Defendant 1. Since Defendant 1 loaned the additional money for the new construction of the loan of this case to Defendant 1 and Defendant 1, but was unable to obtain the existing loan and additional loan, Defendant 201, 201, and 202, each of the above subparagraphs 1 and 202 were asserted as follows:

(3) In other words, the Plaintiff asserts to the effect that, if Defendant 1’s above assertion is met, the secured debt against Defendant 1, namely, the secured debt against Defendant 1, should be secured, and that, even if there is no secured debt or the secured debt exists, the market price confirmation and liquidation procedures prescribed in subparagraphs 101, 201, and 202 of the Loan in this case should be conducted. If there is no secured loan claim, the Plaintiff’s claim against the Defendants should be accepted as claimed earlier.

(4) On this issue, the Defendants asserted that the liquidation procedure is not necessary since they acquired the instant loan Nos. 101, 201, and 202 as payment in kind, and even if the liquidation procedure is required, the amount of the loan to Defendant 1’s deceased Party’s deceased Party’s deceased Party’s deceased Party’s loans offered as security at KRW 247,454,00,00, in total, KRW 167,426,00,00, in total, of the actual appraised value (the amount of the security right, etc. set forth in the above loan) of the loan No. 101, 201, and 202.

3. Determination

(a) Facts of recognition;

The title holder of 1 through 4, 1 through 5, 3, 6, 1 through 12, 10-1 through 10, 10-1 through 11, 2, 15-1 through 4, 16-1 through 15, 17, 18-1 through 4, 17, 19-1, 19-2, 3, 19-1 through 4, and 17, 19-1, 2, 19-1, 2, 3, 19-1, 20, 3, 10-1, 200, 3, 12-1, 21, 2, 23, 1, 2, 3, 3, 1, 3, 3, 1, 2, and 3 of the Act on the Registration of Real Estate of the Republic of Korea, which was established under the name of 1, 3, and 4, of the title owner.

(b) Markets:

(1) According to the above facts, as the actual contractor who newly constructed the instant loan, the network Gap acquired the ownership of the instant loan from its original contractor (However, it appears that the network Gap and the non-party 1, the contractor and the contractor of the instant loan, agree to vest in the non-party 1, 101, 201, and 202 of the instant loan from its original contractor and the contractor of the instant loan from its original contractor, and the registration of ownership preservation has been completed with Defendant 1 and 2 as to the instant loan from its original contractor and the title trust between the network Gap and the defendant 1, and 2, the above loan from its original contractor is null and void by Article 4 of the Act on the Registration of Real Estate under Actual Titleholder's Name. Thus, the ownership of the instant loan from the original contractor and the contractor of the instant loan from its original contractor must be restored to the plaintiff, the sole heir of the network Gap who succeeded to the status of the original contractor and the title truster Gap.

[On the other hand, the defendants asserted that the plaintiff's title trust assertion is unjustifiable on the ground that they hold the evidence Nos. 1 (the certificate of registration of loan) and No. 2-1 and No. 2 (the sales contract and the certificate of registration concerning loan site). However, in light of the facts acknowledged earlier, especially that the network Gap and the defendant No. 1 have a relationship of internal relations for a long time, it does not seem that even if the defendant No. 1 holds the certificate of registration concerning loan Nos. 101, 201, and 202, and the certificate of registration concerning loan No. 101, 202 and the certificate of registration, etc. of loan No. 202, it cannot be viewed that it interferes with recognizing the fact of the trust of the deceased Gap's owner even if

(2) As to subparagraphs 101 and 202 of the Loan of this case

(A) In relation to the Plaintiff who succeeded to the status of the original acquisitor and the title truster, Defendant 1 is obligated to perform the registration procedure for ownership transfer on the ground of the recovery of the authentic name with respect to No. 202 of the Loan of this case, and Defendant 2 is obligated to perform the registration procedure for ownership transfer on the ground of No. 10

(B) In addition, since the provisional registration of the right to claim ownership transfer by Defendant 3, which was based on the registration of ownership transfer by Defendant 2, is also invalid, Defendant 3 is liable to implement the procedure for registration of cancellation of the above right to claim ownership transfer by subrogation of Defendant 2.

(3) As to the loan of this case 201

(A) As seen above, the ownership of the loan of this case 201 is against the network Gap. Thus, the defendant 1 sold the loan of this case 201 to the non-party 6 on October 5, 2007 and completed the registration of transfer of ownership on October 12, 2007 constitutes tort against the network Gap, barring special circumstances, such as the fact that he was delegated the disposal authority by the network Gap. Thus, the defendant 1 is obliged to pay the damages claim of this case 78,180,000 won, which is equivalent to the purchase price, to the plaintiff who was transferred the damage claim of this case, and the delay damages for this.

(B) However, according to the evidence No. 2-1, No. 23, and No. 24 of the evidence No. 2-1 and the whole purport of the pleadings, prior to the above sales contract, the loan No. 201 of this case was established on Jan. 5, 2006, and the lessee was 5 million won of the lease deposit. While Defendant 1 and Nonparty 6 entered into the above sales contract, they can be acknowledged that Nonparty 6 succeeded to the secured debt of the above right to collateral and deducted the lease deposit from the sales price. Meanwhile, it is reasonable to view that Defendant 1 was liable to return the secured debt of the above right to collateral and the lease deposit, and there is no evidence to acknowledge that Defendant 1 was not liable to return the leased debt of the above right to collateral security and the lease deposit, and thus, Defendant 1 did not accept the remainder of the secured loan and the lease deposit money of this case.

(C) Therefore, Defendant 1 is obligated to pay to the Plaintiff the damage claim from the deceased Party 53,180,000 won (i.e., KRW 78,180,000 - KRW 20,000 - KRW 5,000,000) and to pay damages for delay at each rate of 20% per annum under the Civil Act from October 12, 2007, which is the date of the adjudication of the first instance, until November 23, 2010, which is the date of the adjudication of the first instance, to the effect that Defendant 1 claims for damages from the deceased Party 5,180,000 won (i.e., KRW 78,180,000 - KRW 5,000), and to pay damages for delay from the next day to the date of full payment.

C. Family judgment

In the absence of the above title trust of the deceased Gap, when the title trust of this case is not acknowledged, 201 and 202 are presumed to be owned by the defendant 1, who is the title holder of the registration of ownership transfer, and 101 of the loan of this case is presumed to be owned by the defendant 2, who is the title holder of the registration of ownership transfer. However, since the ownership of the newly constructed building is the original acquisition by the person who constructed it, if the title holder of the registration of ownership transfer does not construct it, the presumption of the right to the registration is broken, and if the title holder does not have newly constructed it, the title holder of the registration must prove the fact that he has lawfully acquired the ownership (see Supreme Court Decision 95Da30734 delivered on July 30, 196, etc.). Accordingly, since the defendants are those who newly built the loan of this case by the deceased Gap, the right to preserve ownership of the defendant 1 and 2 has been lost, and therefore, they must prove that the ownership of this case was lawfully acquired by the title owner.

Therefore, the Defendants asserted that Defendant 1 had the above loan claims against the deceased and Defendant 1, and that Defendant 1 had the above loan claims against Defendant 3 and 7, Eul evidence Nos. 9-1 through 10, Eul evidence No. 11-2, Eul evidence No. 12-1, 2, 3, 15-1, 2, 15-1, 3, 18-1 through 2-2, 17, 2-1, 2-1, 2-2, 3-1, 2-1, 7-2, 2-1, 7-1, 2-2, 3-1, 2-1, 2-2, 3-1, 5-1, 2-2, 2-1, 7-1, 5-1, 2-1, 2-2, 3-1, 7-1, 5-2, 1-2, 2-1, 7-2, 2-1, 7

4. Conclusion

Therefore, the plaintiff's claim against the defendant 1 is accepted within the scope of the above recognition, and the remaining claims are dismissed as without merit. The plaintiff's claim against the defendant 2 and 3 is accepted for all of the grounds. Since the part against the defendant 2 and 3 in the judgment of the court of first instance and the part against the plaintiff as to the defendant 1 are unfair in conclusion, part of the plaintiff's appeal is accepted and they are revoked, and each part of the judgment of the court of first instance is revoked, and the plaintiff 1 and 2 are ordered to execute the above provisional registration procedure, and the defendant 3 orders the plaintiff 3 to implement the cancellation registration procedure of the above provisional registration and pay the above amount to the plaintiff, and the defendant 1 is ordered to pay the remaining appeal against the defendant 1 as well as the remaining appeal against the defendant 1 is dismissed. It is so decided as per Disposition.

[Attachment]

Judges Kim Yong-ho (Presiding Judge)

1) Since the first instance court rejected the Plaintiff’s lawsuit against Defendant 3 as unlawful, this part of the case ought to be remanded to the court of first instance, but since the first instance court was able to render a judgment on the merits of the case, the first instance court itself decides to render a judgment on the merits.