[1] The validity of provisional registration made by the title truster or his/her heir to preserve the right to claim the transfer registration of ownership against the title trustee where the actual right holder is not registered within the grace period under the Registration of Real Estate under the Registration of Real Estate under Actual Title Holder

[2] In a case where the real name registration is not made within the grace period under the Act on the Registration of Real Estate under Actual Titleholder’s Name, whether the title trustee can exercise a real right claim based on ownership (negative)

[1] According to Articles 4, 11, 12, etc. of the Act on the Registration of Real Estate under Actual Titleholder’s Name, a title truster, who had any real right to real estate registered under a title trust agreement prior to the enforcement of the Act, or had another person register it under the name of the title trustee within one year from the enforcement date of the Act, shall make the actual name registration. If the title truster fails to do so within the said period, the title trust agreement becomes null and void, and any change in real right to real estate under the registration made under the title trust agreement becomes null and void. Thus, after the said grace period has expired, the title truster or his heir did not have the right to claim the ownership transfer registration due to the termination of the title trust agreement against the title trustee, and even if the title truster or his heir completed the provisional registration to preserve

[2] Since the registration of transfer of ownership in the name of a trustee made pursuant to a title trust agreement with the truster should be cancelled as the cause invalidation after the grace period under the Act on the Registration of Real Estate under Actual Titleholder’s Name expires, the inheritor of the trustee cannot assert that he is the owner of the entrusted land, and as a real right claim based on ownership, he cannot exercise the right to claim the cancellation of the registration for the provisional registration in the name

[1] Articles 4, 11, and 12 of the Act on the Registration of Real Estate under Actual Titleholder’s Name / [2] Article 214 of the Civil Act, Articles 4, 11, and 12 of the Act on the Registration of Real Estate under Actual Titleholder’s Name

Plaintiff 1 and one other

Defendant

Gwangju High Court Decision 97Na6314 delivered on July 31, 1998

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

We examine the grounds of appeal.

1. According to the records, the court below's finding that the deceased non-party 1, who was the husband of the defendant, purchased the land No. 1 and the land No. 2 of this case, and completed the registration of ownership transfer under a title trust under his father's name, the deceased non-party 2, the father of the deceased non-party 2. After the non-party 1 died on June 4, 198, the non-party 2 attempted to transfer the title of ownership to the defendant who is the wife of the deceased non-party 1 on January 20, 1989, and agreed to transfer the provisional registration of this case to the defendant due to the transfer of the transfer income tax, etc., and the provisional registration of this case was made to the defendant. The court below's finding that the non-party 1, who was the husband of the defendant, was correct, and there is no violation of the rules of evidence, the reasons for non-party 2

2. In accordance with the above facts, the court below held that, even if the non-party 2 and the defendant did not have any actual intention to make a pre-sale, the pre-sale agreement was valid because the non-party 1, who succeeded to the status of the non-party 1 by means of taking the form of the pre-sale agreement, had the intention to transfer ownership in the future to the defendant, who is the actual representative of the heir, and therefore, the defendant acquired the right to claim the transfer registration of ownership against the non-party 2, and therefore, the provisional registration of the defendant is valid in that it

However, according to Articles 4, 11, and 12 of the Act on the Registration of Real Estate under Actual Titleholder’s Name, promulgated by Act No. 4944 of March 30, 1995, and enforced from July 1, 1995, the title truster, who had had any real right to real estate registered under a title trust agreement prior to the enforcement of the Act, or had any title trustee registered or had any real right to real estate registered under the name of the title trustee under the title trust agreement before the enforcement of the Act, shall make the actual name registration within one year from the enforcement date of the Act. If the title truster fails to make the actual name registration or sale disposition within the said period, the title trust agreement becomes null and void, and any change in real right by the registration made under the title trust agreement becomes null and void. Thus, even if the title truster or his heir did not have the right to claim the ownership transfer registration upon the termination of the title trust agreement after the said grace period has expired, the judgment of the court below that held the right of title truster’s heir and the heir’s title trustee’s right of this case.

However, since the registration of transfer of ownership in the name of Nonparty 2, which was made according to the title trust agreement with Nonparty 1, and the registration of transfer of ownership in the name of Nonparty 2, should be cancelled as the invalidation of the cause after July 1, 1996, the grace period of the law has expired, the Plaintiffs, the inheritor of Nonparty 2, cannot assert that they are the owners of the land in this case, and cannot exercise the right to claim cancellation of the provisional registration in the name of the defendant as a real right claim based on ownership. Therefore, the plaintiffs' claim seeking cancellation of the provisional registration cannot be cited in any way. Therefore, the decision of the court below that rejected the plaintiffs' claim is justified in its result, and the above judgment of the court below did not affect the conclusion of the judgment, and it is not acceptable to

The grounds of appeal are without merit.

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Chocheon-sung (Presiding Justice)