Seoul Central District Court 2008Kadan1151 ( September 23, 2008)

Where real estate under title trust is not registered in actual name, the effect of attachment to the title trustee.

A title truster who has been registered under a title trust agreement under the name of another person shall make the actual name registration within one year from the enforcement date of the Real Estate Real Name Act, and if he/she fails to comply therewith, he/she cannot oppose the tax authority that completed the seizure registration of ownership of the title trustee.

The contents of the decision shall be the same as attached.

Article 45 of the National Tax Collection Act

1. The part of the judgment of the court of first instance against the Defendants shall be revoked.

2. The plaintiff's claim against the defendants is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendants, while performing the procedure for registration of cancellation of ownership preservation completed on January 12, 1995 as the receipt No. 2031 of the Seoul Central District Court ○○○ registry office, 1995, with respect to shares of 1/4 of the real estate listed in the separate sheet (hereinafter referred to as “instant building”) by the Plaintiff, the Defendants expressed their intent to accept each procedure for registration of cancellation.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

The following facts are not disputed between the parties, or they can be acknowledged in full view of the descriptions of Gap evidence 1 through Gap evidence 9 (including provisional number, hereinafter the same shall apply), Eul evidence 1 and 2, and the whole purport of the pleadings, and there is no counter-proof.

A. As to the building of this case, the Plaintiff completed the registration of ownership preservation as to shares of 1/4 shares in the joint names of the Plaintiff, the tea, the order of malone, the change of malone, and the Kim○ as of January 12, 1995.

B. The defendant Republic of Korea completed the attachment registration of the above 1/4 shares ownership of the building of this case as of November 9, 200 by the receipt No. 40695 of the same registry office on November 9, 2000, following the procedure for the disposition of arrears in order that ○○○ did not pay the comprehensive income tax in 1996. The defendant Republic of Korea completed the attachment registration of the above 1/4 shares ownership of the building of this case from the Seoul Western District Court of Seoul as of June 9, 2005 by the same court from the defendant Kim Jong-○, the claimed amount of KRW 332,00,000 among the debtor Kim ○ and the claimed amount of KRW 332,00,000 among the Kim ○-○'s shares ownership of this case, and completed the provisional attachment registration as of June 13, 2005 by

C. Around 198, the Plaintiff filed a lawsuit against the Seoul Central District Court 98Gahap30666 against the following order, changed ○○, and Kim○ (hereinafter referred to as “non-party to the lawsuit”) seeking the implementation of each procedure for the registration of ownership transfer on the ground that the Plaintiff newly constructed the building of this case and subsequently acquired the building of this case at the original time, the Plaintiff’s cancellation of each of the non-party’s registration of ownership transfer on the ground that the ownership was trusted in trust to the non-party, but the ownership was terminated (hereinafter referred to as “the previous lawsuit”).

D. On January 27, 1999, during the continuation of the instant prior suit, the instant prior suit took over the legal proceedings against Lee Young-young, the heir of the deceased ○○ Net (hereinafter “the deceased”).

E. On November 4, 2005, the above court sentenced the plaintiff to the original acquisition of the building of this case by newly building using his effort and materials, and accordingly, each of the non-party's shares in the name of the deceased's legal successor on the ground that each of the shares in the title of the non-party, which was completed in relation to the building of this case, is a registration invalidation of the cause for invalidation, the court ordered the registration of ownership preservation in the name of the deceased and the registration procedure of cancellation, etc. of each of the shares in each of the 1/4 shares in the building of this case to the legal successor of the deceased and the registration of ownership preservation in the name of the deceased in accordance with the upper shares

2. Determination

A. Determination on the cause of the claim

According to the above facts, the registration of ownership preservation in each of the titles in the name of ○○ and Kim○, among the buildings of this case, is null and void. The Defendants, who completed the registration of seizure or provisional seizure based on the above ownership preservation etc. of each of the above invalidity of the cause, are obligated to express their consent to the Plaintiff regarding the procedure for registration of cancellation of each of the above shares' ownership preservation against the Plaintiff of ○○ and Kim○, except in extenuating circumstances.

B. Determination of the defendants' assertion

(1) The Defendants asserted that, inasmuch as the Plaintiff’s new construction of the instant building and obtained a building permit under the joint name between the Plaintiff and the Nonparty, according to the agreement with the Nonparty, and the Plaintiff’s own completion of each ownership preservation on the building ledger prepared after the completion of the instant building, the registration of ownership preservation was made pursuant to the title trust agreement, and even if a title trust agreement or the registration of ownership preservation was invalidated between the Plaintiff and the Nonparty pursuant to the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”), it cannot be asserted against the Defendants, a third party as stipulated in Article 4(3) of the Real Estate Real Name Act, even if the registration of ownership preservation was invalidated, and thus, the Defendants did not

(2) Therefore, we examine whether the registration of ownership of the non-party under the name of the non-party 1 was made according to the title trust agreement or the non-party 2's new construction of the building, and then complete the construction permission under the name of the non-party 1 and the non-party 2's joint title registration under the name of the non-party 1 and the non-party 1's new construction of the building without the agreement between the plaintiff and the non-party 1 and the non-party 9's new construction of the building, and then, the registration of ownership transfer of the non-party 1 and the non-party 9's new construction of the building was completed under the name of the non-party 1 and the non-party 1's new construction of the building without the consent of the non-party 1 and the non-party 2's new construction of the building. Thus, the non-party 1 and the non-party 1's new construction of the building should also be deemed to have been completed under the name of the non-party 1's new construction permission.

(3) Furthermore, we examine whether the Defendants were obligated to express their consent to the Plaintiff with respect to the execution of the procedure for registration of cancellation of shares in relation to the Plaintiff from the Nonparty, in particular changed ○○○, and Kim○, and whether they had the Plaintiff to register or have the real right to real estate under the title trust agreement before the enforcement of the Real Estate Real Name Act which was promulgated by Act No. 4944 on March 30, 1995 and enforced from July 1, 1995, under the title trust agreement, under the title trust agreement, the title truster shall carry out the real name registration within one year from the enforcement date of the Real Estate Real Name Act. If the real right registration or sale disposition is not made within the prescribed period, the title trust agreement becomes null and void. However, the change in real right to real estate under the registration made pursuant to the title trust agreement becomes null and void (Article 4(1) and the main sentence of paragraphs (2), the main sentence of Article 11(1), and Article 12(1)2(2)2) and each of the above shares cannot be deemed null and void.

(4) As to this, the plaintiff obtained the permission of construction from the non-party at the time of obtaining the construction permission for the building of this case, and thereafter, tried to change the building owner into the plaintiff's sole name by arranging the ownership of the land, and to complete the registration of ownership preservation accordingly. However, the plaintiff's assertion that the registration of ownership preservation was completed at his own discretion without the permission of the non-party in the situation where the ownership relation to the building owner was not properly organized because it was driving away from the construction schedule or the ownership relation to the building site was not properly organized. However, in light of all the above circumstances, the testimony of Gap's evidence Nos. 7 through No. 9, and evidence No. 11 and evidence No. 11 are insufficient to acknowledge that the plaintiff obtained the permission of construction from the non-party at the time of the construction of the building of this case, and there is no evidence to acknowledge it otherwise.

(5) Meanwhile, the Plaintiff asserted that the Defendants have the obligation to consent in accordance with the judgment of the previous suit of this case which became final and conclusive. However, even if the previous suit of this case rendered a judgment that the registration of ownership preservation of each share in the name of the Nonparty should be cancelled as a cause null and void, the previous suit of this case and the lawsuit of this case may not immediately be deemed to have the Defendants’ obligation to consent on the sole basis of the existence of the judgment other than the judgment of the previous suit of this case, since the previous suit of this case

(6) Therefore, the Defendants did not have a duty to express their consent to the Plaintiff regarding the implementation of the registration procedure for cancellation of ownership preservation registration of each of the above shares against the Plaintiff in the ○○ Rules and Kim○-so.

3. Conclusion

Therefore, the plaintiff's claim of this case against the defendants is dismissed in its entirety as it is without merit. Since the part against the defendants in the judgment of the court of first instance which concluded differently is unfair, all appeals by the defendants shall be accepted, and the plaintiff's claim of this case against the defendants shall be dismissed in its entirety, and it is so decided as per Disposition.

[Seoul Central District Court 2008Kadan1151, 2008.23]

1. The Defendants, among the real estate listed in the separate sheet, expressed their intention of each acceptance on the cancellation registration procedure completed on January 12, 1995 under the Seoul Central District Court Registry No. 2031, in relation to the Plaintiff’s share of 3/36 shares, Lee Young-young, a litigation taking over the second ○○ order among the real estate listed in the separate sheet, with respect to the shares of 2/36 shares in the next ○○ line, which is the litigation taking over the second ○○ order, the next ○○, and the next ○○○, respectively.

2. The costs of lawsuit are assessed against the Defendants.

The same shall apply to the order.

1. Facts of recognition;

[Evidence: Facts without dispute; evidence Nos. 1, 2, 3-1, 2, 5, 6, 7, evidence No. 8-1, 2, 3, evidence No. 9, evidence No. 1, 2, 1, 2, 1, 2, 2, and 4-1, 4-1, 5, 5, 6, 7, 5-1, 8-2, 1, 9-2, and 1-2

A. On January 12, 1995, registration of preservation of ownership has been made in the name of the plaintiff, the non-party 1/4 share in the name of the plaintiff, the non-party 2, the changed rule, and the Kim○ on January 12, 1995.

B. The Defendant Republic of Korea completed the attachment registration under the Dongjak-gu Seoul Central District Court Registry No. 40695, Nov. 9, 200, with respect to the ownership of shares in the instant building, following the procedure for the disposition on default, in which ○○○ did not pay the comprehensive income tax accrued in 1996.

C. The defendant Dongjak-gu completed each seizure registration of the non-party's ownership based on the same registry office's receipt of October 27, 2001, No. 49295, May 4, 2004, No. 17508, and No. 34151 on August 1, 2005, where the non-party did not pay the property tax on the building of this case.

D. The Korea Technology Credit Guarantee Fund received a favorable judgment in the case of claim for reimbursement amount claim No. 2000dada1546078 against Kim ○, and based on the above judgment, received a decision to commence compulsory auction on the ownership, etc. of shares in the building of this case from Kim ○ on May 17, 2005, and completed the relevant decision registration by the same registry office No. 2041 on May 20, 2005.

E. The defendant Credit Guarantee Fund received a provisional attachment decision of which the claim amount is KRW 332,00,000,000 in respect of the ownership of shares in Kim○, and completed the provisional attachment registration by the same registry office No. 24676, Jun. 13, 2005.

F. The Plaintiff filed a lawsuit against the Nonparty for the procedure of registration of the transfer of right against the instant building on the ground of the trust termination by the Seoul Central District Court 98Gahap3066, as to the instant building (the title of the instant building, ○○, ○○, ○○, ○○, and ○○, a heir, etc., who died during the lawsuit).

G. On November 4, 2005, the above court rendered a judgment ordering cancellation of each of the grounds that registration of ownership preservation in the name of the non-party was invalid for the reason that the registration of ownership preservation in the name of the non-party was made without any justifiable reason, and the above judgment became final and conclusive at that time.

2. Determination

A. According to the above facts, each registration of preservation of ownership made in the name of the non-party should be cancelled after the registration of invalidation of the cause, and the defendants who completed each registration of seizure, etc. based on each of the above preservation registrations which is null and void should express their consent to the cancellation of each of the above preservation registrations unless there are other special circumstances.

B. Determination on Defendant Republic of Korea’s assertion

The defendant Republic of Korea has already completed registration of preservation of ownership in the name of ○○ Rules and registration of seizure different from that of the instant building, so the above defendant is trusted by the owner on the registry as the real owner and cannot respond to the plaintiff's claim in this case. However, the defendant's assertion that the above defendant cannot respond to the plaintiff's claim in this case because there is no ground for registration, as in the instant registration of preservation of ownership, or if the registration that is the appearance of the right does not coincide with the substantive legal relationship, as in the instant case, does not recognize the public trust in the registration that allows the trusted person to acquire the right as registered. Therefore, the defendant's argument

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted as it is without merit, and it is so decided as per Disposition.