Plaintiff

Defendant (Attorney Choi Han-sub, Counsel for defendant-appellant)

October 2, 2013

1. All of the lawsuits for interim confirmation of this case are dismissed.

2. The defendant (the intermediate confirmation defendant) will implement the procedure for cancellation registration of each transfer of ownership completed on May 25, 2005 under the receipt No. 51429 with respect to each real estate listed in the separate sheet to the plaintiff (the intermediate confirmation plaintiff).

3. Of the costs of lawsuit, the costs incurred by the principal lawsuit shall be borne by the defendant (the intermediate confirmation defendant), and the costs incurred by the lawsuit for intermediate confirmation shall be borne by the plaintiff (the intermediate confirmation plaintiff).

The main office is as set forth in Section 2 above.

In a lawsuit for interim confirmation: It is confirmed that there is no agreement of transfer by contract title trust between the Plaintiff (the intermediate confirmation Plaintiff; hereinafter the “Plaintiff”) and the Defendant (the intermediate confirmation Defendant; hereinafter the “Defendant”). As to each real estate listed in the separate sheet, it is confirmed that each ownership transfer registration in the name of the Defendant, which was completed on May 25, 2005 by the Changwon District Court, Kimhae registry Office, 51429, received on May 25, 2005, is invalid.

1. Determination on the lawfulness of each intermediate confirmation lawsuit

(a) Cases 2013Gahap3729:

1) The plaintiff's assertion

Although the fact that a contract title trust agreement has been concluded with the Defendant, or there was no agreement to transfer each real estate listed in the separate sheet (hereinafter “each of the instant real estate”) to the Defendant (hereinafter “instant transfer agreement”), the Defendant asserts that there exists a contract of transfer under a contract title trust, and thereby there is apprehension that the Plaintiff’s rights or legal status is infeasible. Accordingly, seeking confirmation that there is no contract of transfer under a contract title trust.

2) Determination

On the other hand, a lawsuit for confirmation may only be instituted in cases where there is a dispute or conflict of interest concerning the present right or the existence of legal relations, and it may be established by judgment only when it is effective and adequate to eliminate the risks or instability of the legal status of the plaintiff, and a simple assertion about facts cannot be a subject of confirmation (see Supreme Court Decision 91Da25413, Oct. 8, 191, etc.). Thus, the existence of a transfer agreement under a contract title trust asserted by the plaintiff cannot be confirmed merely because it is a mere assertion about facts.

Even if the plaintiff's domestic claim is concluded between the plaintiff and the defendant to the effect that the contract title trust agreement and the transfer agreement of this case do not exist, the intermediate confirmation lawsuit refers to the cancellation of the ownership transfer registration under the defendant's name on the ground that the effect of the contract title trust agreement and the transfer agreement of this case exists against the mandatory law, and thus, if the plaintiff's claim for intermediate confirmation cannot be seen as having a preliminary legal relationship with respect to the original claim, the intermediate confirmation lawsuit shall be deemed unlawful (see, e.g., Supreme Court Decision 83Nu54,555, Jun. 26, 1984). As examined below, the plaintiff does not assert that the ownership transfer registration under the defendant's name is null and void on the ground that the contract title trust agreement and the transfer agreement of this case exist, and therefore, the transfer registration becomes null and void against the mandatory law. Thus, the plaintiff's lawsuit cannot be deemed to be directly unlawful as to the intermediate confirmation claim of this case's claim.

(b) Cases 2013 Gohap5039

1) The plaintiff's assertion

Although the Plaintiff’s registration of ownership transfer (hereinafter “each of the instant registration of ownership transfer”) that was completed on May 25, 2005 by the Changwon District Court Kimhae-si Office of 51429 on each of the instant real estate by the Defendant was null and void in violation of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”), the Defendant asserts that the said registration is valid. Accordingly, the Plaintiff’s right or legal status is unstable. Accordingly, seeking confirmation that each of the instant registration of ownership transfer is null and void.

2) Determination

On the other hand, in a lawsuit for confirmation, there must be a benefit of confirmation as a requirement for the protection of rights, and the benefit of confirmation shall be recognized only when the plaintiff's right or legal status is the most effective means to eliminate such apprehension and danger (see Supreme Court Decision 94Da59257, May 26, 1995, etc.). Although a lawsuit for confirmation may be brought against the defendant for performance, it is not a final solution of the dispute, and there is no benefit of confirmation (see Supreme Court Decision 2005Da60239, March 9, 206, etc.). Thus, in this case, in light of the above legal principles, the plaintiff has already filed a claim for cancellation of ownership transfer registration against the defendant on the premise that each transfer registration of ownership in the name of the defendant is null and void, and therefore, the plaintiff's intermediate confirmation of this case is not recognized. Therefore, the plaintiff's intermediate confirmation of this part of the lawsuit is unlawful.

2. Basic facts

A. On April 9, 2003, the Plaintiff concluded a sales contract with the Nonparty to purchase KRW 700,000,000 for the return of KRW 1,782 square meters in the Jeju-si, Kimhae-si ( Address 1 omitted), KRW 20,000,00 in the ( Address 2 omitted), KRW 298,000 in the ( Address 3 omitted), KRW 298,000 in the ( Address 4 omitted), KRW 2,926 square meters in the ( Address 4 omitted), ⑤ KRW 1,521 in the ( Address 5 omitted), and KRW 60,00 in the ( Address 6 omitted).

B. At the time of April 9, 2003, the Plaintiff received KRW 70,000,000 from the Defendant, who was in Yong-Nam, and paid the Nonparty the down payment of KRW 70,000,000. On April 11, 2003, the Plaintiff received KRW 100,000 from the Defendant and paid KRW 100,000 as an intermediate payment of KRW 1,00,000. The Plaintiff received KRW 1,30,000 from the NAF as collateral and received KRW 430,00,000 in its own name (hereinafter “the instant loan”) from the Defendant, and paid the Nonparty the remainder of KRW 530,00,000 from the Nonparty, and received KRW 1,50,000,000 from the Nonparty with respect to the said real estate from the Nonparty, and received the registration of ownership transfer from the Nonparty under each of the Nonparty’s Seoul District Court and the Nonparty’s registry.

다. 2003. 9. 16. 위 ④ 토지는 ㉮ (주소 4 생략) 답 853㎡, ㉯ (주소 7 생략) 답 2,040㎡, ㉰ (주소 8 생략) 답 33㎡로, 위 ⑤ 토지는 ㉱ (주소 5 생략) 답 1,141㎡, ㉲ (주소 9 생략) 답 380㎡로, 위 ⑥ 토지는 ㉳ (주소 6 생략) 답 1,781㎡, ㉴ (주소 10 생략) 답 1㎡로 각 분할되었다.

D. Meanwhile, on May 25, 2005, on the other hand, the Defendant received from the Plaintiff the ownership transfer registration (each of the instant real estates) from the Changwon District Court, Kimhae registry, No. 51429 on May 25, 2005, as to the above-mentioned land and the above-mentioned land (each of the instant real estates) on April 25, 2005.

E. After doing so, on November 1, 2005: 4. Rabb, due land caused to occur, and 5. The land in the Gu department was expropriated in Gyeongnam-do for the road establishment and packing work on the local highway 1042 line (hereinafter referred to as the Do road 1042 line to the Do road 1042 line). Kimhae-si, on November 3, 2005, transferred KRW 445,564,090, out of KRW 576,45,000, the expropriation compensation of KRW 576,45,000 to the Do road 10,890,910 to the NA bank account (hereinafter referred to as the “agricultural bank account”), and transferred the remaining KRW 130,890,910 to the NAC (hereinafter referred to as the “agricultural bank account”) account.

F. The National Agricultural Cooperative Federation deducted the total of KRW 430,564,00,00 from the above loan account, which was remitted from Kimhae-si on November 3, 2005, the total of KRW 444,593,00,000, interest KRW 12,443,021, and early redemption commission KRW 2,150,00,000, and KRW 771,069,000, after deducting the expenses for cancelling the registration of collateral security and superficies creation, which were created in each of the instant real property, from the total of KRW 200,00,000.

G. On November 4, 2005, the Plaintiff deposited KRW 130,000,000 from the said Nonghyup account as a check, and on the same day, the Defendant deposited the same amount in the account of his community credit cooperatives (Account Number 3 omitted) account.

【Ground of recognition】 without any dispute, Gap’s evidence 1, Gap’s evidence 2-1, 2-4, Gap’s evidence 8-2 through 7, Gap’s evidence 15-2 through 7, Gap’s evidence 17-1, Gap’s evidence 18-1 through 10, Gap’s evidence 20-1 through 14, Gap’s evidence 21-1 through 8, Gap’s evidence 22-1 through 22-5, Eul’s evidence 2-1 through 3, and the purport of the whole pleadings

3. The plaintiff's assertion 1)

(a) The primary cause of the claim;

The contract was concluded between the Plaintiff and the Defendant regarding each of the instant real estate. Since the above contract was rescinded because the Defendant failed to perform its obligation to pay the purchase price, the Defendant is obligated to implement the procedure to register cancellation of each of the instant transfer of ownership.

(b) Preliminary cause of claim.

Even if it is not recognized that a contract was concluded between the Plaintiff and the Defendant, the Plaintiff and the Defendant entered into a contract title trust agreement with the Plaintiff as a trustee and the Defendant, and thereafter, the agreement was concluded to transfer the ownership of each real estate of this case to the Defendant on the premise of the above title trust agreement, and the ownership transfer registration was completed in the name of the Defendant. As such, the above contract title trust agreement is null and void, and the agreement of this case also becomes null and void as it is in violation of the Real Estate Real Name Act, and is null and void. However, the agreement of this case also becomes null and void, and the Plaintiff, the trustee, has acted in good faith at the time when the Plaintiff received the registration of ownership transfer from the seller, and thus, the Plaintiff, the trustee, still acquires ownership. Therefore, the ownership of each real estate of this case

4. Determination

(a) Facts of recognition;

1) On August 4, 2009, the Plaintiff filed a lawsuit against the Defendant for the payment of the purchase and sale balance of each of the instant real estate as Changwon District Court 2009Kahap107755.

2) Regarding this, the above court: (a) concluded a contract under a so-called title trust agreement with the Plaintiff, and completed each of the instant real estate in its own name, based on the following: (b) the Defendant is holding a certificate of completion of registration and documents necessary for completing each of the instant registrations; (c) the Defendant places each of the instant agreements on land use as the Plaintiff’s membership; (c) the Defendant bears all relevant taxes, such as acquisition tax and registration tax, and interest on the instant loans; and (iv) the Plaintiff paid most of the remainder to the Defendant, after receiving compensation for expropriation from Gyeongnam-do and using the loan repayment; and (e) concluded a contract under a so-called title trust agreement with the Nonparty, and concluded each of the instant registrations under its own name; (c) thereafter, the Plaintiff and the Defendant concluded the instant transfer agreement between the Plaintiff and the Defendant to execute each of the instant registrations of ownership transfer on each of the instant real estate indicated in the separate list in lieu of performing the Plaintiff’s obligation to return unjust enrichment to the Defendant; and therefore, (c) accordingly, the registration of ownership transfer agreement under the name of the Defendant is valid.

3) The Plaintiff, who was dissatisfied with the above judgment, appealed to the Busan High Court Changwon, but was sentenced to the dismissal judgment (2010Na999). The Plaintiff appealed to the Supreme Court but was sentenced to the dismissal judgment by the Supreme Court (Supreme Court Decision 2010Da84741). The said judgment became final and conclusive (hereinafter “final and conclusive judgment of the first instance judgment”).

【Ground of recognition】 The fact that there has been no dispute, the fact that there has been a significant fact in this court, the entry of Eul No. 2-1 through 3, and the purport of whole pleadings

B. Determination

1) Judgment as to the primary cause of claim

In light of the following facts: Gap evidence Nos. 1, 2, 2-1, 3, 9, 10, 11, 12, 15-1 through 7, Gap evidence Nos. 16-1 through 16, 19, Gap evidence Nos. 20-1 through 14, 21-1 through 8, 22-1 through 23, Gap evidence Nos. 23-26-1, 27-2, Gap evidence Nos. 27-1, 28, Gap evidence Nos. 35 through 37, and Gap evidence Nos. 38-1, 37, and 38-4, the plaintiff's assertion that the contract of this case had been concluded between the plaintiff and the defendant cannot be accepted without any reasonable evidence that had been concluded between the plaintiff and the defendant's new judgment of this case.

[The plaintiff asserts that since the defendant led to the confession of the fact that the contract was concluded by stating that "the land of this case was registered in the name of the defendant on April 25, 2005 due to the sale on April 25, 2005, on the ground that it was sold on March 21, 2013, the plaintiff asserts that it would be used as a profit."

However, the above statement by the defendant merely appears to the purport that there is no dispute as to the entry on the registry, and it is not sufficient to view that the sales contract, which was the ground for registration, was constituted effectively, and there is no other evidence to acknowledge it otherwise. Rather, the defendant has invoked the final judgment in the above preparatory document that "the title trust was concluded between the plaintiff and the defendant, rather than the sales contract," and asserts that "the plaintiff's claim based on the premise that the sales contract was established effectively, is contrary to the res judicata, etc. of the judgment in the previous lawsuit, and thus unfair, the above argument by the plaintiff

In addition, the Plaintiff asserts that the fact of concluding a sales contract between the Plaintiff and the Defendant is recognized by the sales contract (Evidence A No. 1). However, the Plaintiff had already judged the probative value of the above sales contract in a final and conclusive judgment, and the evidence submitted by the Plaintiff in the instant lawsuit alone cannot be deemed as having any circumstance to support facts different from the facts established in the previous case. Thus, the Plaintiff’s assertion also has no reason to deem

2) Determination as to the conjunctive cause of claim

A) Determination as to the Plaintiff’s claim

(1) Under the so-called contract title trust agreement between the Plaintiff and the Defendant, the Plaintiff entered into a sales contract with the Nonparty, designating KRW 700,000,000,00 for the above real estate including the instant real estate as a title trustee. The Plaintiff received a total of KRW 270,00,000 from the Defendant and received KRW 430,000 from the NACF as security, and paid KRW 700,000 to the Nonparty, and completed the registration of ownership transfer of the instant real estate in the name of the Plaintiff. At the time, the Nonparty was unaware of the existence of a title trust agreement between the Plaintiff and the Defendant; thereafter, the Plaintiff entered into the instant transfer agreement between the Plaintiff and the Defendant to transfer the ownership of each of the instant real estate to the Defendant; and the fact that each of the instant real estate was completed under the said transfer agreement with the Defendant pursuant to the above transfer agreement, the Plaintiff’s ownership is deemed null and void by the agreement between the Plaintiff and the Defendant’s title trustee 20,260, respectively.

(2) Furthermore, in cases where a title trust relationship between the Plaintiff and the Defendant regarding the validity of the above transfer agreement to transfer the ownership of each real estate in this case between the Defendant and the title holder of the purchase price was established in purchasing the real estate, even if the purchase price was entered into an agreement between them, such agreement shall be deemed null and void, on the premise of a title trust agreement null and void under the Real Estate Real Name Act, under the premise of a title trust agreement null and void under the Real Estate Real Name Act (see, e.g., Supreme Court Decision 2006Da35117, Nov. 9, 2006).

In the instant case, the Plaintiff and the Defendant concluded the instant transfer agreement under the premise that each of the instant real estate in title trust was the property held by the Defendant in title trust with the Defendant at the Defendant’s request. In light of the legal principles as seen earlier, the said transfer agreement is merely an act of promising the return of title trust real estate itself on the premise that the null and void transfer agreement is valid through the form of a new agreement, and thus is also null and void (see Supreme Court Decision 2011Da103472, Mar. 14, 2013).

(3) Therefore, since the registration of transfer of ownership in the name of the defendant is invalid without a legitimate ground, the defendant is obligated to implement the procedure for registration of cancellation of each transfer of ownership in this case to the plaintiff, the owner of each real estate in this case, unless there are special circumstances

B) Judgment on the defendant's argument

In this regard, the defendant asserts that the plaintiff's claim of this case is contrary to res judicata of the final and conclusive judgment of the previous suit, or is contrary to issues.

(1) As to the claim on res judicata, the previous suit invoked by the Defendant is claiming that the Plaintiff sold each of the instant real estate to the Defendant and sought payment of the purchase price, and the res judicata effect of the final and conclusive judgment extends only to the existence of a purchase price claim. The subsequent suit is seeking cancellation of ownership transfer registration by asserting that the registration of ownership transfer in the name of the Defendant was null and void. Since the subject matter of the lawsuit exists, the final and conclusive judgment in the previous suit and the lawsuit in the previous suit are different, and the conclusion of the judgment on the subject matter of the final and conclusive judgment in the previous suit does not conflict with that in determining the existence of the subject matter of the lawsuit in the previous suit, and thus, the Plaintiff’s claim in this case cannot be said to conflict with the res judicata effect of the final

(2) Next, we cannot accept the defendant's above argument that the effect of res judicata of a final and conclusive judgment is included in the text of the judgment, i.e., the conclusion of the judgment on the existence of legal relations asserted as a subject matter of lawsuit, and that it does not affect the existence of legal relations, which are the premise stated in the grounds for the judgment (see Supreme Court Decision 9Da55472 delivered on February 25, 2000). Thus, even if the judgment is based on a different premise, it becomes an important issue in the lawsuit, and if the parties assert and prove it and the court examines it substantially, it is difficult to accept the defendant's argument that the judgment of the court on the issue should be binding.

(3) However, barring any special circumstance, the facts acknowledged in the civil case related to which it has already been established are valuable evidence, and thus it cannot be rejected without any reasonable explanation (see Supreme Court Decision 94Da47292 delivered on June 29, 195, etc.). In the final and conclusive judgment in the previous suit, the fact that “the registration of transfer of ownership in the name of the defendant with respect to the real estate of this case is valid as it is based on an agreement to transfer the real estate of this case in lieu of performing the obligation to return unjust enrichment to the defendant,” as seen earlier.

① However, the principal lawsuit of this case does not dismiss the existence of the agreement of this case between the plaintiff and the defendant, i.e., the existence of the above transfer agreement, but merely differs from the legal judgment on the premise of the existence of the above transfer agreement. ② For the purpose of prohibiting the repetition of litigation in accordance with the good faith principle, at least the judgment was rendered in the previous lawsuit and the parties had been rendered a judgment on the matters in which the parties had committed an attack and defense, so the dispute over such matters is required that the other party has already reached a reasonable trust (see Supreme Court Decision 2002Da11847, Sept. 24, 2002, etc.). Such circumstances need to be considered when recognizing the validity of the previous lawsuit between the same party as proved in the grounds for the final judgment. ③ However, in the previous lawsuit of this case, the prior lawsuit only dealt with the issue of whether the contract of this case was concluded or whether the contract of this case was concluded, and whether the transfer agreement of this case was concluded, and further, it cannot be viewed as violating the validity of the contract of this case.

C. Sub-committee

Therefore, the Defendant is obligated to implement the procedure for registration of cancellation of ownership transfer registration as stated in Paragraph (2) of the Disposition against the Plaintiff.

4. Conclusion

Thus, the lawsuit of intermediate confirmation of this case is dismissed in its entirety as it is unlawful, and the plaintiff's claim of this case is justified, and it is so decided as per Disposition.

[Attachment List omitted]

Judges Hong Chang-woo (Presiding Judge)

(1) The Plaintiff asserts, as its principal cause of claim, that “a contract title trust agreement was concluded between the Plaintiff and the Defendant, which is not a sales contract, according to the Defendant’s assertion, and on the premise that there exists a transfer agreement to return each of the instant real estate to the Defendant, who is the truster, even if there exists a transfer agreement, such transfer agreement becomes null and void.” As such, the Plaintiff’s assertion that the former would be deemed as the primary cause of claim and the latter would be determined by deeming the latter as the primary cause of claim.

2) The Plaintiff asserted that there was a fact of concluding a sales contract for each of the instant real estate in the first instance court and the appellate court, and only asserted that there was no contract title trust agreement and the instant transfer agreement, and did not make any particular argument as to the validity of the instant transfer agreement, and subsequently lost both the first instance court and the appellate court. After that, the Plaintiff asserted the invalidity of the instant transfer agreement only in the appellate brief, but the Plaintiff asserted that the instant transfer agreement was null and void, and that it was dismissed due to the delay of hearing.