In a case where a lawsuit seeking ownership transfer registration on the ground of termination of title trust was filed before the Act on the Registration of Real Estate under Actual Titleholder’s Name was enforced, but the ownership transfer registration on the ground of cancellation of title trust was changed to a lawsuit for confirmation of existence of title trust relation due to lack of permission for land acquisition under the former Act on the Acquisition and Management of Land by Foreigners, and where a preliminary application for ownership transfer registration on the ground of cancellation of title trust due to a change of the above Act was added following the expiration of the grace period for real name registration, whether the lawsuit

The title truster filed a claim against the title trustee for the registration of ownership transfer on the ground of termination of the title trust before the enforcement of the Act on the Registration of Real Estate under Actual Titleholder’s Name, but thereafter, failed to obtain the permission for land acquisition under the former Foreigner’s Land Acquisition and Management Act (amended by Act No. 5544 of May 25, 1998), and thus, the title truster and the title trustee seek confirmation of the existence of the title trust relationship after the alteration of the title trust relationship between the title truster and the title trustee, but again adding the claim for registration of ownership transfer on the ground of termination of the title trust due to the alteration of the former Foreigner’s Land Acquisition and Management Act after the grace period under Article 11(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name has expired. The same applies to cases where the title truster files a lawsuit against the title trustee on behalf of the title truster.

Article 11(1) and (4) of the Act on the Registration of Real Estate under Actual Titleholder’s Name; Article 6 of the former Foreigner’s Land Acquisition and Management Act (wholly amended by Act No. 5544 of May 25, 1998) (see current Article 4 of the Foreigner’s Land Acquisition Act)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo and 1 other, Counsel for plaintiff-appellant)

Young Development Co., Ltd. (Attorney Kim Young-soo, Counsel for the plaintiff-appellant)

Defendant (Attorney Hong-soo et al., Counsel for the defendant-appellant)

Gwangju High Court Decision 97Na739 delivered on September 11, 1998

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The defendant's attorney's grounds of appeal are examined.

1. On the first ground for appeal

According to the reasoning of the judgment below, the court below found that the non-party 1 (foreigner) contributed the purchase fund of the real estate of this case after compiling the admitted evidence, and obtained the registration certificate of the right to the real estate of this case from the defendant, and managed the real estate of this case by allowing the non-party 1 (foreigner) to use the real estate of this case as grassland on the part of the non-party 1, while paying taxes on the real estate of this case, etc., the above non-party 1 (foreigner) purchased the real estate of this case. However, due to the limitation of the law regulating foreigner's land acquisition, the above non-party 2 was held in title trust after the termination of the title trust with the non-party 2 of this case. In light of the records, the court below's decision is just, and there is no error of law such as violation of the rules of evidence, incomplete deliberation, violation of the rule of experience, and inconsistent reasoning, etc.

2. On the second ground for appeal

According to Article 11(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, a title truster shall make a real-name registration within one year from the enforcement date of the said Act. However, Article 11(4) of the said Act provides that if litigation as to the real-property right is instituted in a court before the enforcement date of the said Act or during the grace period, the real-name registration or the sale of the real-property right shall be made within one year from the date the final and conclusive judgment on the litigation is rendered. As above, Article 11(4) of the said Act applies only to litigation as to the real-property right as mentioned above. Article 2 subparag. 4 of the said Act provides that the real-property right registered under the name of the title trustee under the title trust agreement prior to the enforcement date of this Act is registered under the title truster’s name after the enforcement date of this Act. However, in light of the purport that the said Act was enacted to have the ownership and other real rights to real-property registered under the title trustee’s name within 197 years prior to the enforcement date of the said Act. This provision applies.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles, such as the theory of lawsuit. There is no ground for appeal.

3. Therefore, the appeal is dismissed and all 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 Lee Jae-hee (Presiding Justice)