207Na9600 Registration of transfer of ownership

Kim** (55-1)

Song** (55-1)

Suwon District Court Decision 2006Da64616 Decided March 29, 2007

March 11, 2008

April 1, 2008

1. The part against the defendant in the judgment of the first instance shall be revoked;

2. The defendant shall execute the procedure for the registration of ownership transfer with respect to the plaintiff's apartment 000 * on the ground of sale *.

3. The defendant is responsible for total costs of litigation between the plaintiff and the defendant.

The same shall apply to the order.

1. Judgment on the ground of the plaintiff's claim

(a) Facts of recognition;

(1) Use**, Kim* is a school creation, which has been living in the family-gu for about 40 years, and the plaintiff is the husband of Yong-gu and the defendant is the husband of Kim*.

(2) Around July 30, 2003, the Defendant was added to the sale price of the Donggdong-si Housing Site Development Zone 42.7 square meters, and at the same time, his wife Kim** also sold at 1,00 apartment units within the same district. (3) The Defendant entered into an agreement with the Plaintiff that the Plaintiff will succeed to the Defendant’s obligations for loans to the financial institutions (hereinafter referred to as “instant agreement”) arising from the Plaintiff’s purchase of apartment units at the same time as the above wife’s wife. As the Defendant became difficult to raise funds due to the purchase of apartment units, it shall transfer its right of sale to the Plaintiff. The Plaintiff shall first transfer its right of sale with the Co-Defendant 00, Co-Defendant 200, Co-Defendant 200, Co-Defendant 200, Co-Defendant 300, Co-Defendant *** (hereinafter referred to as the “sale company”). The Plaintiff, on behalf of the Defendant, paid the down payment and the balance to the selling company.

(4) On August 19, 200, the Plaintiff paid 281,800,000 won for the sale in lots in the name of the Defendant, the selling company paid 28,180,000 won for the first down payment in the name of the Defendant, and received the original copy of the sales contract and the part payments loan passbook in the name of the Defendant from the Defendant, in subrogation of the Defendant, on November 12, 2003, 2,254,400 won as the school site charges in subrogation of the Defendant, and 869,000 won as the incidental option application fee on September 20, 2005, and 28,180,000 won as the part payment on December 6, 2005, and thereafter, the selling company allocated to the Defendant for the purpose of changing the above apartment site development zone to the environment improvement project (hereinafter referred to as the “multi-family housing”).

(6) The Plaintiff paid the remainder and sought the performance of the procedure for the registration of ownership transfer of the apartment of this case to the Defendant. The Defendant only divided the proceeds from the resale after joint investment. On March 21, 2006, the Plaintiff filed a report on the loss of the sales contract with the selling company on March 21, 2006 and received the re-issuance, and paid the remainder of KRW 56,304,420 to the selling company on April 21, 2006.

According to the above facts, the defendant is obligated to implement the registration procedure for transfer of ownership on the apartment of this case to the plaintiff under the agreement of this case, unless there are special circumstances.* The defendant is obligated to implement the registration procedure for transfer of ownership on the ground of sale.

2. The defendant's assertion and judgment

(a) argument that the violation of the prohibition of resale and the contract for sale is invalid;

The defendant asserts that the contract of this case is null and void in violation of the Housing Act provision which prohibits resale of the right of sale and the sales contract between the defendant and the selling company.

According to the contract for sale between the defendant and the selling company under Article 41-2 of the Housing Act, Article 45-2 of the Enforcement Decree of the same Act, and Article 45-2 of the Enforcement Decree of the same Act, and the contract for sale between the defendant and the selling company (Evidence A 2), the act of resale of the apartment of this case located in the overheated speculation district is prohibited, but the above Housing Act, etc. does not purport that the purchaser cannot oppose the selling authority by the fact of the resale, and the legal effect of the resale contract between the selling authority and the selling authority is not null and void. The contract for sale in lots is concluded between the defendant

B. The assertion that the title trust agreement is invalid

The defendant asserts that the agreement of this case constitutes a title trust agreement with the actual buyer who is the plaintiff and only the name as the defendant, and that a title trust relationship is formed at the same time with the registration of ownership transfer concerning the apartment of this case. Since such agreement is null and void pursuant to Article 4 (1) of the Act on the Registration of Real Estate under Actual Titleholder's Name, the claim of this case seeking the premise that the agreement of this case is valid,

On the other hand, the agreement of this case is merely the relationship between the defendant and the plaintiff that the plaintiff purchased the right of sale from the defendant and entered into a sales contract under the Housing Act and the sales contract, so the realization of the right to purchase and sell the apartment house of this case or the right to sell and sell the apartment of this case between the defendant and the plaintiff is merely a way to complete the registration of ownership transfer to the plaintiff after completing the registration of ownership transfer under the name of the defendant for the apartment of this case. Thus, it is difficult to view that the registration of ownership transfer under the name of the defendant is a prior procedure for performing the contract of this case, and it cannot be deemed that the title trust relationship between the plaintiff and the defendant was established. Therefore, the defendant

The defendant asserts that the contract of this case is "a gift contract which is not written", and that the defendant did not have any obligation to respond to the plaintiff's claim since the contract of this case was terminated.

In light of the above facts, it is reasonable to view that the agreement of this case is a sales contract which provides that the plaintiff shall perform the obligation to pay the sale price to the selling company, and the method of payment shall be deemed as a non-sale contract for the sale price in lieu of the defendant's obligation to pay the sale price to the selling company, as seen earlier. (The defendant cannot transfer the right to purchase the sale price itself as the winner of the sale price, and it cannot be viewed as the subject of donation. In addition, in order to have transferred the right to sell the sale price itself with property value to the plaintiff free of charge, it shall be recognized that the plaintiff was transferred the right to sell the sale price to the plaintiff without paying the down payment. According to the agreement of this case, since all the sale price is actually borne by the plaintiff, the agreement of this case shall not be deemed as a donation. Accordingly, the defendant's assertion on the premise that the agreement of this case is not a donation

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of its reasoning, and since the part against the defendant in the judgment of the court of first instance is unfair on the grounds of its conclusion, it is revoked, and it is so decided as per Disposition by the defendant to order the performance of the above obligation.

Judges of the presiding judge

Judges

Judges