[1] The meaning of "litigation as to real estate rights" under Article 11 (4) of the Act on the Registration of Real Estate under Actual Titleholder's Name

[2] The elements to recognize that the “litigation as to real estate property rights” raised after the grace period as stipulated in Article 11 of the Act on the Registration of Real Estate under Actual Titleholder’s Name is a whole together with the lawsuit brought before or during the enforcement of the same Act, and that the existing title trust relation is not invalidated during the continuation of such a series of lawsuits

[3] The case holding that, in case where Gap and Eul purchased Eul's land from Eul in accordance with the title trust agreement between Eul and Eul, and completed the title transfer agreement again, and Eul completed the title transfer registration, but Eul did not go to Eul's office ability and completed the registration of establishment of a neighboring mortgage on the land to Eul, the lawsuit filed against Eul prior to the enforcement of the Act on the Registration of Real Estate under Actual Titleholder's Name cannot be deemed to constitute "litigation on real estate rights" under Article 11 (4) of the same Act, and the lawsuit filed against Eul et al. after the expiration of the grace period under the same Act cannot be deemed to constitute "litigation on real estate rights" as a whole, and the grace period under Article 11 (1) of the same Act has expired, and Eul and Eul became null and void since the grace period under Article 11 (1) of the same Act has expired

[4] Where the grace period under Article 11 of the Act has expired when the title trustee, who had concluded the so-called contract title trust agreement with the owner who was unaware of the fact of the title trust agreement before the Act on the Registration of Real Estate under Actual Titleholder’s Name, concluded a real estate sale agreement and paid the price in full, but failed to complete the registration of ownership transfer under the name of the

[1] "Litigation as to the real right to real estate" under Article 11 (4) of the Act on the Registration of Real Estate under Actual Titleholder's Name is sufficient if the title truster is a party to the dispute to assert that he/she is the actual right holder and to have it confirmed officially. In addition, the title truster's creditor, who is not the title truster, files a lawsuit on behalf of the title truster in subrogation of the title truster, constitutes the case where the title truster's creditor, who is not the title truster, files the lawsuit on behalf of the title truster, and as a result, it is not limited to the litigation to be immediately entitled to the real name registration, but at least, it should be interpreted

[2] Although a lawsuit as to the real right to real estate was filed after the grace period stipulated under Article 11 of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”), in order to view that the existing title trust relation cannot be invalidated during the continuation of a series of lawsuits that were filed before the enforcement of the Real Estate Real Name Act or during the grace period, even if the said lawsuit was filed as a whole with the lawsuit brought before or during the enforcement of the Real Estate Real Name Act, the “litigation as to the real right to real estate” was first instituted and sentenced in the first instance during the enforcement of the Real Estate Real Name Act, but the results of the judgment alone cannot be converted into the real name, and thus, the second lawsuit for the conversion into the real name after the grace period has expired within a considerable period after the confirmation of the first lawsuit.

[3] The case holding that in case where Gap purchased Eul's land and completed the title transfer registration under the title trust agreement entered into between Eul and Eul, and Eul again purchased Eul's land and completed the title transfer registration to Byung, Eul's office ability was omitted, and Eul completed the registration of creation of a neighboring mortgage with respect to the land, it is hard to view Gap's claim for damages against Eul prior to the enforcement of the Act on the Registration of Real Estate under Actual Titleholder's Name as a tort, and it is merely a claim for damages arising from the act of creation of a right to collateral security, and it does not constitute "litigation as to the right to real estate" under Article 11 (4) of the same Act, and the lawsuit filed by Gap and the delegated person of Eul filed a claim for the transfer registration against Eul after the expiration of the grace period under the same Act, and it cannot be deemed that the lawsuit filed against Eul et al. under Eul's name constitutes "the right to real estate" under Article 11 (4) of the same Act, and the grace period has expired with the lapse of the grace period under Article 11 (1) of the same Act.

[4] Before the enforcement of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”), the title truster and the title trustee entered into the so-called contract title trust agreement and paid all the purchase money pursuant to the sales agreement with the owner who was unaware of the fact that the title trustee was the party concerned, but the grace period under Article 11 of the Real Estate Real Name Act has expired when the registration of ownership transfer was not completed under the name of the title trustee, notwithstanding the invalidity of the title trust agreement, the sales agreement between the title trustee and the owner is deemed valid. In such a case, the title trustee does not merely acquire the ownership of the pertinent real estate because it is merely merely because the title trustee paid the purchase money to the owner for the expenses provided by the title trustee under the title trust agreement and acquired the status of purchaser who purchased the relevant real estate. Thus, the damage that the title truster suffered due to the invalidity of the title trust agreement after the grace period is the purchase fund provided to the title trustee, not the relevant real

[1] Article 103 of the Civil Code / [title trust] Article 103 of the Act on the Registration of Real Estate under Actual Titleholder's Name / [2] Article 103 of the Civil Code / [3] Article 103 of the Act on the Registration of Real Estate under Actual Titleholder's Name / [4] Article 103 of the Civil Code / [title trust] Article 103 of the Civil Code, Article 11 of the Act on the Registration of Real Estate under Actual Titleholder's Name

[1] Supreme Court Decision 98Da30827 delivered on November 10, 1998 (Gong1998Ha, 2841) Supreme Court Decision 98Da1027 delivered on January 26, 199 (Gong199Sang, 347) Supreme Court Decision 98Da51541 delivered on April 9, 199 (Gong199Sang, 843) / [2] Supreme Court Decision 98Da12874 delivered on June 26, 1998 (Gong198Ha, 1992)

Plaintiff (Law Firm Cheongju, Attorneys Yu Jae-sik et al., Counsel for the plaintiff-appellant)

Defendant 1 and four others (Law Firm D.L.S., Attorney Lee Sung-hee, Counsel for the defendant-appellant)

Daegu District Court Decision 2009Na4808 Decided January 28, 2010

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

The grounds of appeal are examined.

1. As to the second ground for appeal

Article 11(1) of the Act on the Registration of Real Estate under Actual Name (hereinafter “Real Estate Real Name Act”) provides that the existing title truster as at the time of enforcement of the said Act shall enter into force within a grace period of one year, and Article 11(4) of the said Act provides that “If litigation as to the real right of real estate is instituted before this Act enters into force or during the grace period, the actual name registration or the sale of the real estate shall be made within one year after the final and conclusive judgment (including the same effect as this),” while allowing the extension of the grace period for real name conversion to the real estate under Articles 12(1) and 4(1)9 of the Real Estate Real Name Act to the effect that if the title truster fails to take a disposition for real name registration or sale within the period prescribed under Article 11, the title truster’s existing title truster’s title trust agreement shall be invalidated for a period of at least nine years after the said judgment becomes final and conclusive, and that the title truster’s existing real estate title trust agreement shall be deemed effective through a judicial precedent.

Meanwhile, even if a lawsuit as to the real right to real estate was brought after the grace period as stipulated in Article 11 of the Real Estate Real Name Act, in order to view that the existing title trust relation does not become effective during the continuation of a series of lawsuits filed before or during the grace period for the enforcement of the Real Estate Real Name Act, even though the said lawsuit was filed, in order to view that the existing title trust relation does not become effective during the continuation of the said series of lawsuits, the “litigation as to the real right to real estate” within the above meaning has been instituted and sentenced first, but the judgment was rendered, but the result of the judgment alone cannot be said that the second lawsuit for the real right conversion after the lapse of the grace period was made within a considerable period after the first lawsuit becomes final and conclusive (see Supreme Court Decision 98Da12874 delivered on June 26, 1998, etc.).

The court below, citing the reasoning of the judgment of the court of first instance, concluded a title trust agreement with Nonparty 1 for the registration of ownership transfer at the expense of Nonparty 2 and Nonparty 2, and concluded a title trust agreement with Nonparty 3 on February 23, 190, pursuant to the title trust agreement with Nonparty 1. Nonparty 9, the court below held that Nonparty 1 and Nonparty 4 were entitled to the above 9, Daegu District Court on the ground that Nonparty 9 was the title trust agreement for the above 9, Daegu District Court on the 9,000, and that Nonparty 2 was not entitled to the above 9, Daegu District Court on August 22, 191, 196 (the judgment of the court of final appeal against Nonparty 1 was affirmed on the 9,000, Daegu District Court on the 9,000, which decided that Nonparty 1 was entitled to the above 9, and that Nonparty 1 was not entitled to the above 9, Daegu District Court on the 9,000.

In light of the above facts in light of the legal principles as seen earlier, the Daegu District Court Kimcheon-ho 94Ga2660, which was the lawsuit filed by Nonparty 2 prior to the enforcement of the Real Estate Real Name Act, is merely seeking damages against Nonparty 4 due to the tort, which was the act of establishing the right to collateral security against Nonparty 4. It is difficult to view that the lawsuit constitutes “litigation on the right to collateral security” as stipulated in Article 11(4) of the Real Estate Real Name Act. As above, the lawsuit filed by Nonparty 2 against Nonparty 4 and the lawsuit filed by Nonparty 2 against Nonparty 4 against the above court after the lapse of the grace period under the Real Estate Real Name Act, and the lawsuit filed by Nonparty 2, who was delegated by Nonparty 2, was all filed in the name of Nonparty 1 and the lawsuit filed by Nonparty 6 against the above court against Nonparty 4, etc., cannot be deemed to constitute “litigation on the right to collateral security.”

Although there are some inappropriate parts at the time of the reasoning of the lower judgment, the lower court’s conclusion that the title trust agreement between Nonparty 2 and Nonparty 1 was null and void due to the lapse of the grace period under Article 11(1) of the Real Estate Real Name Act is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine of litigation as to real estate property rights under Article 11(4) of the Real Estate Real Name Act, and thereby adversely affecting

2. As to the grounds of appeal Nos. 1 and 3

Before the enforcement of the Real Estate Real Name Act, if the title truster and the title trustee entered into a so-called contract title trust agreement with the owner who was unaware of the fact that the title truster was the party to the title trust agreement and paid all the purchase money pursuant to the said contract, but the grace period under Article 11 of the Real Estate Real Name Act had expired since the registration of ownership transfer of the pertinent real estate was not completed under the name of the title trustee, the sales contract itself between the title trustee and the owner shall be deemed valid notwithstanding the invalidity of the said title trust agreement. In this case, the title trustee does not acquire the ownership of the pertinent real estate, which was not merely paid the purchase money to the owner of the relevant real estate, but merely acquired the status of the purchaser who purchased the relevant real estate through the payment of the purchase money. Thus, the damages suffered by the title truster due to the invalidation of the said grace period following the said grace period are the purchase fund provided to the title trustee rather

Examining the aforementioned facts in light of the aforementioned legal principles, since the grace period of the Real Estate Real Name Act expired and the title trust agreement on the instant land between Nonparty 2 and Nonparty 1 was null and void, the registration of ownership transfer was not made under the name of Nonparty 1, and thus, Nonparty 1, the title trustee, was unjust enrichment for the purchase fund received from Nonparty 2, not the instant land itself, and thus, Nonparty 2 was merely holding the claim for return of unjust enrichment equivalent to the purchase fund to Nonparty 1.

Although there are some inappropriate parts at the time of the reasoning of the lower judgment, the lower court’s conclusion that Nonparty 2 only owned the claim for return of unjust enrichment equivalent to the purchase fund against Nonparty 1, was justifiable. In so doing, it did not err by failing to exhaust all necessary deliberations in the lower judgment, thereby exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on title trust, which affected the conclusion of the judgment, by failing to exhaust all necessary deliberations, as alleged in the grounds of appeal.

3. As to the fourth ground for appeal

In order to deny the exercise of the right on the ground that it violates the principle of trust and good faith, a person who has provided good faith to the other party or who has objectively taken advantage of the other party’s trust and good faith must be in a state of trust and good faith, and the exercise of the right against such other party’s trust and good faith should be in such a state that is not acceptable in light of the concept of justice (see Supreme Court Decision 2003Da1601, Jun. 11,

Upon examining the reasoning of the judgment below in light of the above legal principles, the court below is justified in holding that the registration of transfer of ownership in the name of Nonparty 7 as to the land of this case is invalid, and each registration in the name of the Defendants is also invalid. Defendant 1, 2, 3, and 4 as the real owner of the land of this case, and Defendant 1, 2, 3, and 4 as the real owner of the land of this case who solely inherited the property of Nonparty 1, and Defendant 1, 2, 3, and 4 as the real owner of the land of this case, and Defendant U.S. agricultural cooperative are liable to cancel the registration of transfer of ownership and the registration of creation of superficies,

4. 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 Min Il-young (Presiding Justice)