[1] Where a title trust agreement becomes null and void because it was not made within the grace period under the Act on the Registration of Real Estate under Actual Titleholder’s Name because it was not made within the title trust agreement, whether a title truster, who had completed the registration of ownership transfer for the previous real estate subject to title trust, may seek a registration for transfer due to the recovery of real name against

[2] The meaning of the grace period under Article 11 (2) of the Act on the Immigration and Legal Status of Overseas Koreans

[1] 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. 494 of March 30, 1995 and enforced from July 1, 1995, the title truster, who had had any real right to real estate registered or had any real right to real estate registered under a title trust agreement before the Real Estate Real Name Act enters into force, shall carry out the real name registration within one year from the date of entry into force of the Act, and if he/she did not take the real name registration or the sale disposition within the prescribed period, the title truster shall invalidate the title trust agreement, and if any change in real right to real estate made by the registration pursuant to the title trust agreement becomes null and void, the title truster of the general title trust shall seek cancellation of the registration against the title trustee on the ground of the invalidation of the registration. However, as a matter of principle, the title truster, who had already acquired the ownership under his/her own name, may seek the registration of title transfer against the title truster under his/her title trust registration under its own name.

[2] If a real estate registration is not made within the grace period under the Act on the Registration of Real Estate under Actual Titleholder’s Name, the registration made under the previous title trust agreement shall be cancelled as the invalidation of the cause. As such, the title truster may seek the cancellation of the registration made under the previous title trust agreement against the title trustee or seek the registration of transfer made under the restoration of the real name. Article 11(2) of the Act on the Immigration and Legal Status of Overseas Koreans, “A foreign nationality Korean who reported the domestic place of residence shall register or register under the title trust agreement before the enforcement of the Act on the Registration of Real Estate under Actual Titleholder’s Name.” Even though Article 11(1) and (2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name does not apply where a foreign nationality Korean who reported the domestic place of residence within the grace period under the title trust agreement provides for the title truster’s title trust registration under the Act on the Registration of Real Estate under Actual Titleholder’s Name and the title truster’s status under the title trust agreement shall not be effective after the grace period under the title trust agreement is extended.

[1] Articles 4, 11, and 12 of the Act on the Registration of Real Estate under Actual Titleholder’s Name; Article 186 of the Civil Act / [2] Article 11(2) of the Act on the Immigration and Legal Status of Overseas Koreans; Articles 11 and 12 of the Act on the Registration of Real Estate under Actual Titleholder’s Name

Plaintiff (Attorney Jeon Soo-soo et al., Counsel for plaintiff-appellant)

Defendant 1 and one other (Attorney Lee Jae-soo, Counsel for the defendant-appellant)

Daejeon District Court Decision 2001Na10326 delivered on May 24, 2002

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

1. Summary of the judgment below

The court below, based on the adopted evidence, found that the registration of ownership transfer was made under the name of the plaintiff on April 1, 1966 with respect to the real estate in this case, and since from around 1968, the plaintiff residing in the United States from around 1968 agreed to transfer his ownership to the defendants for the management of the real estate in this case. However, the plaintiff, who had been living in the United States, agreed to complete the registration of ownership transfer in the name of the non-party 1's wife in the name of the defendant 1 on July 24, 1979, and the registration of ownership transfer was made under the name of the non-party 1's name on the real estate in this case. Meanwhile, the defendants decided to change the name of the non-party in the name of the real estate in this case to the defendants, and completed the registration of ownership transfer under the name of the non-party 1's name on April 13, 199, each of the above real estate in this case under the name of the plaintiff and the defendants 1's name.

2. Judgment on the grounds of appeal

A. Examining the evidence admitted by the court below in light of the records, it is just to acknowledge each title trust as above, and there is no error of law such as misconception of facts or incomplete hearing due to violation of the rules of evidence, as otherwise alleged in the ground of appeal.

B. Next, according to Articles 4, 11, and 12 of the Real Estate Real Name Act, which was promulgated by Act No. 4944 of March 30, 1995 and enforced from July 1, 1995, the Real Estate Real Name Registration Act, which was enforced, the title truster, who had had any real right to real estate registered or had any real right to real estate registered under a title trust agreement before the Real Estate Real Name Registration Act enters into force, shall carry out the real name registration within one year from the date of entry into force of the Act, and if he did not dispose of the real name registration or sale within the prescribed period, the title truster shall invalidate the title trust agreement, and if any change in the real right to real estate registered under the title trust agreement becomes null and void, the registration of transfer registration under the said name of the Defendants with respect to the real estate in this case shall be cancelled after the grace period under the Real Estate Real Name Registration Act, and as a matter of principle, the Plaintiff may seek the registration of transfer registration against the Defendants under his real name restitution under the title of the Act, which was unlawful or unlawful.

C. In addition, if the real name registration, etc. is not made within the grace period prescribed under the Real Estate Real Name Act, the registration made pursuant to the previous title trust agreement must be cancelled as the cause invalidation. Thus, the title truster may seek cancellation of the above registration or seek registration of transfer made due to restoration of the real name. Article 11(2) of the Act on the Immigration and Legal Status of Overseas Koreans (hereinafter referred to as the “Overseas Koreans Act”) provides that “Where a foreign nationality Korean who reported the domestic place of residence has made a real right to real estate registered or required to be registered under the name of the title trustee pursuant to the title trust agreement before the enforcement of the Act on the Registration of Real Estate under Actual Titleholder’s Name, the provisions of Article 11(1) and (2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name shall not apply to an overseas Korean who reported the domestic place of residence within one year after the enforcement of the Act on the Registration of Real Estate under Actual Titleholder’s Name or the grace period for the registration of real estate under the title trustee’s name shall not be applied to the title trustee’s title trust agreement or the Act.

3. Conclusion

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 Song Jin-hun (Presiding Justice)