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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. The gist of the Plaintiff’s assertion is that the Plaintiff has a claim equivalent to the rate of 20% per annum from January 31, 2013 to the date of full payment of the principal of the loan of KRW 35,000,000 against the Defendant, and the damages for delay calculated by the rate of 20% per annum
The defendant purchased the Daegu Suwon-gu C Apartment 802 (hereinafter referred to as the "instant real estate") in the auction procedure under the status of excess of his/her liability, and purchased it in the name of the defendant according to the title trust agreement with the defendant who is his/her father and completed the registration of ownership transfer.
Therefore, since the Defendant’s amount equivalent to the purchase fund of the instant real estate received from D constitutes unjust enrichment, it constitutes the Plaintiff who subrogated D, the Plaintiff is obligated to pay the principal and interest of the loan incurred until October 1, 2014, 46,679,452 won and damages for delay.
2. The registration of transfer of ownership in the name of the trustee is valid pursuant to the proviso of Article 4(2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”), unless there is any evidence to prove that the other party to the title trustee knew that there was such title trust agreement if the registration of transfer of ownership to real estate was made in the future in the name of the trustee pursuant to the so-called “contractual title trust,” and the title trustee would acquire the ownership of the entrusted real estate. However, if the contract title trust agreement was made after the enforcement of the Real Estate Real Name Act, the title truster could not acquire the ownership of the pertinent real estate from the beginning, and thus, the damage suffered by the title trustee due to the invalidation of the title trust agreement is deemed the purchase fund provided to the title trustee, and the title trustee
(See Supreme Court Decision 2002Da66922 delivered on January 28, 2005). D in this case is the instant case.