Plaintiff (Law Firm Sejong, Attorneys double-luminous et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Ha Sung-il, Counsel for the defendant-appellant)

July 9, 2008

Seoul Northern District Court Decision 2006Da91626 Decided December 11, 2007

1. The plaintiff's appeal and the selective claim in the trial are dismissed, respectively.

2. Upon the plaintiff's conjunctive claim added at the trial, the defendant shall pay to the plaintiff 21,375,00 won with 5% interest per annum from July 2, 1996 to May 20, 2008, and 20% interest per annum from May 21, 2008 to the day of complete payment.

3. The costs of the lawsuit after the appeal shall be borne by the defendant.

4. Paragraph 2. The provisional execution may be effected.

In electively, the Defendant shall implement the procedure for the registration of ownership transfer on the ground of unjust enrichment on the portion of 1/2 of the real estate stated in the separate sheet to the Plaintiff, or the Defendant shall implement the procedure for the registration of ownership transfer on January 4, 1996 with respect to the portion of 1/2 of the real estate stated in the separate sheet to the Plaintiff (the Defendant added his selective claim in the trial).

Preliminaryly, it is stated in the Disposition No. 2 (the defendant added the preliminary claim at the trial).

1. Basic facts

The following facts may be acknowledged, either in dispute between the parties, or in part of the testimony of Non-Party 3 (Defendant's son) of Non-Party 3 (Defendant's son), as a whole, by taking into account the following facts: Gap's 1 through 6, 12, Eul's 1 and 2 (including paper numbers).

A. On September 6, 191, the Defendant, upon the introduction of the Plaintiff, lent KRW 90 million to Nonparty 2, each of which was KRW 30 million with the Plaintiff and Nonparty 1, and on September 6, 1991, on the land indicated in the claim for compensation owned by Nonparty 2 (hereinafter “instant land”) as collateral for the said claim, was created a collateral security right with a maximum debt amount of KRW 135 million with respect to the land indicated in the claim for compensation owned by Nonparty 2 (hereinafter “instant land”). However, the mortgagee and Nonparty 12 were the Defendant.

B. When Nonparty 2 delayed the fulfillment of the above loan obligation, the auction procedure of real estate was commenced on March 22, 1993 upon the Defendant and Nonparty 1 filed an application for a voluntary auction on the instant land based on the foregoing right to collateral security. In the procedure, the Defendant received a decision to grant a successful bid on June 7, 1993, and acquired the ownership of the instant land in full with the amount of KRW 42750,000,000 of the successful bid price. The auction price was assessed against the Plaintiff and the Defendant on one-half.

C. On May 23, 1993, the Defendant invested KRW 21,375,00 with the thickness of KRW 42,750,00 as at the time of winning the contract on May 23, 1993, the Defendant signed and sealed this letter of agreement and possessed one copy of each contract in order to increase the subsequent date, as the Plaintiff contributed to KRW 21,375,000 with the thickness of KRW 42,750,000, the bid price of KRW 42,75,00.

D. On January 4, 1996, the Defendant completed the registration of ownership transfer based on the decision of approval of the above successful bid. On the same day, the Defendant prepared a letter of performance stating that “I, on May 23, 1993, hold that I will implement the registration procedure even at all times at the time when the Plaintiff needs the registration of ownership transfer with respect to the ownership portion, since I own 1/2 of the same real estate shares according to the payment in substitutes contract, since the real estate is owned by the Plaintiff, the Plaintiff will implement the registration procedure.” (Article 3-1, hereinafter “instant execution letter”).

E. The plaintiff paid the tax imposed on the land of this case with the defendant, and he paid the aggregate land tax on the land of this case on October 29, 1997 and on January 20, 1998, he has the receipt.

F. On June 2006, the Plaintiff filed an application with the Seoul Northern District Court for provisional disposition against the Defendant for the prohibition of disposal of real estate (the above court 2006Kadan420) on June 15, 2006 against the claim against the Defendant for ownership transfer registration based on the payment in substitutes contract as of May 23, 1993 for the prohibition of disposal of real estate as preserved bonds, and received the provisional disposition order as of June 19, 2006, and on June 19, 2006, the provisional disposition was registered for the 1/2 shares of the instant land (hereinafter “provisional disposition”).

2. The plaintiff's ground for claim

(a) A claim for registration of transfer of ownership based on the return of unjust enrichment (the first selective claim out of the main claim);

At the time of receiving the decision of approval of a successful bid on the instant real estate, the plaintiff and the defendant bear one-half of the successful bid price and obtain one-half of the share of the instant land. However, since the title of collateral security is the defendant and the non-party 12, there was an agreement to obtain a successful bid under the sole name of the defendant for convenience. Therefore, the plaintiff is deemed to have held a title trust of one-half of the instant land. However, the above title trust agreement was enforced on July 1, 1995, and the grace period under Article 11 of the Act on the Registration of Real Estate under Actual Titleholder’s Name has expired, and became null and void pursuant to Article 12(1) of the same Act on July 1, 1996. Accordingly, the defendant is liable to implement the procedure for the return of the share of the instant land by unjust enrichment to the plaintiff. Accordingly, the defendant is obligated to implement the procedure for the transfer registration of ownership due to unjust enrichment on the land of this case.

B. A claim for the registration of ownership transfer on the ground of an agreement dated January 4, 1996 (the second selective claim in the principal claim)

Even if there was no title trust agreement between the Plaintiff and the Defendant on the instant land, the Defendant, at the time of the preparation of the instant performance memorandum on January 4, 1996, demanded that the shares of 1/2 of the instant land be owned by the Plaintiff and implement the registration procedure even at all times. As such, the Plaintiff is liable to implement the registration procedure on the ground of the said agreement with respect to the shares of 1/2 of the instant land.

(c) Claim for the amount of unjust enrichment refund (the preliminary claim)

Around 193, the Plaintiff and the Defendant entered into a title trust agreement, and thereafter, the ownership transfer registration of the instant land was made on January 4, 1996, after the enforcement of the Act on the Registration, etc. of Real Estate under Actual Titleholder’s Name (amended by July 1, 1995; hereinafter “Real Estate Real Name Act”). If the ownership transfer registration was made on January 4, 1996, which was after the enforcement of the Real Estate Real Name Act, deemed as identical to that of a title trust agreement after the enforcement of the Real Estate Real Name Act, and the subject of return of unjust enrichment due to the invalidation of a title trust agreement is deemed as a purchase fund that is not a land share, the Defendant is obligated to pay the bid price borne by the Plaintiff (21,375,000 won, and damages for delay incurred from July

(d) Claim for a loan (the second preliminary claim);

Around May 23, 1993, if the Plaintiff lent KRW 21,375,00 to the Defendant and the Defendant is unable to repay this, the Plaintiff is obligated to pay the above loans and damages for delay, even if the Plaintiff entered into an agreement on the payment in lieu of the Plaintiff’s share in the land of this case to be transferred to the Plaintiff.

3. Determination

A. Interpretation of the agreement between the plaintiff and the defendant

(1) With respect to the Plaintiff’s assertion of title trust as to the 1/2 share of the instant real estate, the Defendant entered into a quasi-loan agreement whereby the Defendant borrows KRW 21,375,00,00 of the successful bid price from the Plaintiff, and only prepares the instant accord agreement and the instant performance statement with the payment agreement as to the said loan, and asserts that there is no title trust agreement between the Plaintiff and the Defendant. Thus, the Defendant’s assertion that at the time of the successful bid of the instant real estate, the title trust agreement between the Plaintiff and the Defendant does not exist.

(2) In the real estate auction procedure, a title trust relationship is established between a person who bears the cost of a loan and a person who lends the name to another person when the ownership transfer registration is completed (see, e.g., Supreme Court Decision 2005Da664, Apr. 29, 2005). In full view of the above facts and the overall purport of arguments as seen above, the following circumstances are as follows: ① the Plaintiff and the Defendant agreed to sell the instant land in the process of executing the right to collateral security with the loan to Nonparty 2 as the secured claim; ② the Plaintiff did not bear one-half of the auction price of the instant land and the acquisition tax each; ② the Plaintiff did not bear one-half of the auction price of the instant land; ② the Plaintiff and the Defendant agreed to transfer the real estate to the Defendant at the time of voluntary auction, and there is insufficient evidence to acknowledge that the Plaintiff entered into a real title trust agreement with the Plaintiff on the real estate deposit amounting to 1/2 of the auction price under the premise that the Plaintiff did not own the ownership of each of the instant land and the auction price.

B. Legal relations arising from title trust

(1) Nullity of a title trust agreement

As seen above, at the time of the successful bid for the instant land, the Plaintiff and the Defendant: (a) entered into a title trust agreement with the Defendant to title trust with respect to 1/2 shares of the instant land and to possess the registration certificate; (b) thereafter, on January 4, 1996, after the enactment and enforcement of the Real Estate Real Name Act; (c) the Real Estate Real Name Act entered into a title trust agreement with the Defendant on the instant land; (d) the Real Estate Real Name Act stipulates that a title trust agreement is null and void (Article 4 of the said Act); and (e) this provision applies even where a title truster entered into an agreement before the enforcement of the Real Estate Real Name Act and made a registration after the enforcement of the agreement (Article 4944 of the Addenda of the said Act); and (e) the title truster, who had any real right to real estate registered or had another title trustee enter into the title trust agreement before the enforcement of this Act, shall enter into a real name registration within one year from the enforcement date of this Act (Article 11(1) of the said Act); and (e) the said provision applies to the Plaintiff and the title title trust agreement.

(2) Legal relations following the invalidity of a title trust agreement

According to Article 4(1) and (2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, where a title truster and a title trustee entered into a contract title trust agreement, and the title trustee entered into a contract with the owner who was unaware of the fact that the title trustee was a party to the contract and completed the registration of ownership transfer of the relevant real estate in accordance with the said contract, the title trustee will fully acquire the relevant real estate, notwithstanding the invalidity of the title trust agreement between the title truster and the title trustee, and the title trustee is merely liable for the return of unjust enrichment to the title truster. If the contract title trust agreement was entered into after the enforcement of the Real Estate Real Name Act, the title truster could not acquire the ownership of the relevant real estate from the beginning. Therefore, the damage suffered by the title truster due to the invalidity of the said title trust agreement is not the real estate itself, but the purchase fund provided to the title trustee, and therefore, the title trustee shall be deemed unjust enrichment (Supreme Court Decision 2007Da69148, 69155 Decided February 14, 2008).

Therefore, in this case where the land of this case was acquired through a successful bid, it shall be deemed that the title trustee becomes the party concerned and the other party was unaware of the existence of a title trust agreement, and thus, any change in real rights is valid. Therefore, the defendant cannot seek a return of the original portion of the land of this case to the plaintiff, and the defendant shall not seek a return of the original portion of the land of this case to the plaintiff, and return 21,375

(3) Sub-determination

Therefore, inasmuch as the title trust agreement between the Plaintiff and the Defendant is acknowledged, the selective claim No. 1 among the Plaintiff’s primary claim seeking a return of the original claim that was null and void of title trust is without merit, and as long as the title trust agreement between the Plaintiff and the Defendant was concluded on January 4, 1996, the agreement was concluded to transfer the ownership of 1/2 shares of the instant land to the Plaintiff at the time of the execution letter of performance of this case, but this is merely a separate transfer agreement under the premise that the title trust agreement is valid, and thus, it does not constitute a separate transfer agreement, and therefore, it does not constitute a separate transfer agreement. Therefore, it is not reasonable to consider the remainder of the primary claim (see Supreme Court Decision 2006Da35117, Nov. 9, 206). 3).

C. Judgment on the Defendant’s assertion of extinctive prescription

(1) The plaintiff and the defendant's assertion

The defendant asserts that even if a title trust agreement existed between the plaintiff and the defendant on domestic affairs, such agreement only becomes null and void, and that such agreement expired ten years after the lapse of the ten-year prescription from the time of the agreement, and that the plaintiff paid taxes on the land of this case by the time of 2002. As such, the defendant did not approve the obligation to return unjust enrichment to the plaintiff, or that the statute of limitations has been interrupted due to the provisional disposition of this case, or that the defendant's argument that the interruption of prescription is not permissible against the

(2) Determination

(A) Limitation period

As seen above, the Real Estate Real Name Act stipulates that a title trust agreement shall be null and void, and that a title trust agreement shall be entered into and registered after the enforcement of the Real Estate Real Name Act. Thus, the title truster, who had any real right to real estate registered or had any real right to real estate registered under the title trust agreement before the enforcement of this Act, shall enter into a real name registration within one year from the enforcement date of this Act, and if the title truster fails to register or have any real right to real estate registered under the title trust agreement within the said period, the provisions regarding the grace period which provides that the title trust agreement shall be null and void after the expiration of the said period shall not apply to this case where the change in real right was made after the enforcement date of the Real Estate Real Name Act. Therefore, the title trust agreement with respect to the 1/2 portion of the land of this case shall be immediately null and void without waiting for the grace period of one year. Accordingly, the right to claim a return of unjust enrichment arising from the invalidation of the title trust agreement shall have been made on January 4, 1996.

(B) Whether the statute of limitations is interrupted

Approval as a ground for interruption of extinctive prescription is established when the debtor who is a party to the benefit of prescription indicates that the party to the benefit of prescription will lose the right or his/her agent is aware of the existence of the right. The method of indication does not require any form, and it is not explicitly explicitly explicitly, and it is sufficient if the indication is made in such a way that the other party to the other party who represents the indication recognizes the debtor's obligation on the premise that the debtor is aware of the existence and amount of the obligation (see Supreme Court Decision 2006Da22852, 22869, Sept. 22, 2006, etc.).

As seen above, the plaintiff has partially paid taxes, including the aggregate land tax, on the land of this case, and the defendant, at least around January 20, 1998, expressed that the plaintiff would be aware of the existence of the title trust agreement between the plaintiff and the defendant and the plaintiff's rights. Thus, the statute of limitation of the right to claim restitution of unjust enrichment arising from the invalidation of title trust has been interrupted.

In addition, since the obligor's exercise of the right of defense based on the statute of limitations is subject to the principle of good faith and prohibition of abuse of rights, it is subject to the control of the obligor's exercise of the right of defense based on the statute of limitations. Thus, in light of the aforementioned facts and evidence, the obligor's exercise of the right of defense based on the statute of limitations is not allowed as an abuse of rights against the principle of good faith if there are special circumstances, such as where the obligor acted to believe that it is impossible or considerably difficult for the obligee to exercise the right or the interruption of prescription before the expiration of the statute of limitations, or where the obligee has objectively obstructed the obligee from exercising the right, or where the obligor fails to invoke the statute of limitations after the expiration of the statute of limitations, or where there are such special circumstances as where other creditors of the same condition receive the repayment of the obligation, etc., the obligor's refusal of the performance of the obligation cannot be allowed as an abuse of rights against the principle of good faith, and thus, the obligee's assertion that the Plaintiff's exercise of the right of defense based on the statute of limitations as mentioned above is unreasonable or unnecessary.

D. Sub-determination

Therefore, due to the invalidity of the title trust agreement on the one-half share of the land of this case, the defendant is obligated to return to the plaintiff 21,375,000 won, which is equivalent to the purchase price for the one-half share of the land of this case. The defendant is obligated to pay to the plaintiff the beneficiary in bad faith, and the defendant is obligated to pay interest or delay damages calculated at the rate of 5% per annum as stipulated in the Civil Act from July 2, 1996 to May 20, 2008, the delivery date of the application for change of the purport of the claim and the cause of the claim, from May 20, 2008, and from May 20, 2008, the delivery date of the application for change of the cause of the claim.

4. Conclusion

Therefore, the plaintiff's primary claim is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is, and the additional selective claim added in the trial is dismissed as it is without merit, and the additional preliminary claim added in the trial is accepted as reasonable.

Judges Jin-Sick (Presiding Judge)