Plaintiff (Bae, Kim & Lee LLC et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Dokdo, Attorneys Hun-hee et al., Counsel for defendant-appellant)

Seoul Central District Court Decision 2009Da161978 Decided September 14, 2010

April 19, 2012

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant will implement the registration procedure for transfer of ownership based on the return of unjust enrichment with respect to each real estate listed in the attached list.

1. Facts of recognition;

A. The plaintiff is the defendant's wife, and the defendant was employed by the company operated by the plaintiff and was promoted to the executive director on May 1997 while serving as the plaintiff's wife.

B. Each sales contract on the real estate in the attached list No. 1 and Echeon-gun (hereinafter omitted) 68,596 square meters of forest land is indicated to be purchased by the Defendant respectively from Non-Party 1 and Non-Party 2 on April 24, 1989, and KRW 72,625,000. The Defendant completed the registration of ownership transfer for each of the above real estate on June 12, 1989, and the Plaintiff kept the certificate of registration completion for each of the above land from around that time.

C. Upon the Plaintiff’s application, the forest land of 68,596 square meters was divided into each real estate listed in the separate sheet Nos. 2 and 3 around July 1, 2004. Around that time, the registration for change of indication was completed with respect to the divided land pursuant to the entrustment of the Leecheon market. The Defendant received a certificate of completion of registration for divided land and kept it.

D. Upon receipt of a notice for payment of land tax on each real estate listed in the separate sheet (hereinafter “each of the instant real estate”), the Defendant gave it to the Plaintiff’s employees, and the Plaintiff’s employees continued to pay the land tax, etc. imposed on each of the instant real estate in relation to the aggregate land tax. Meanwhile, there was a need for the Plaintiff to settle the tax amount imposed by adding it to the land annexed to the Defendant’s house due to the addition of the tax base by owner and the application of the progressive tax rate to the aggregate land tax in relation to the aggregate land tax. From 1990 to 1997, the Defendant paid the amount of direct settlement to the Defendant, and received a receipt from the Defendant from the Defendant during the period from 1998 to 2004, and transferred the amount of settlement to the Defendant’s bank account. However, on September 28, 2009, the Defendant paid the amount of land tax in 2009, which was already paid by the Plaintiff to the Defendant from around 2001 to 2004 annually.

E. From around 2004, the Plaintiff requested several times to the Defendant to transfer the registration of ownership transfer concerning each of the instant real estate through the Plaintiff’s employees, but the Defendant rejected the request.

[Ground for Recognition] A without dispute, Gap evidence 1-1, 2, 2-1 through 3, Gap evidence 3, Gap evidence 4-1 through 20, Gap evidence 5-1 through 8, Gap evidence 6-1 through 7, Gap evidence 8, Gap evidence 10-1 through 4, Eul evidence 11, Eul evidence 1-1 through 5, Eul evidence 2-1 through non-party 3's testimony (except for the part which is not trusted later), the whole purport of the pleadings, and the purport of the whole pleadings.

2. Establishment of obligation to implement the procedures for transfer registration of ownership due to return of unjust gains;

In light of the above facts as seen in the above facts, namely, the relationship between the Plaintiff and the Defendant, the Plaintiff’s relationship, the Plaintiff’s keeping of the registration certificate of each real estate of this case, the real estate of this case divided upon the Plaintiff’s application, and the Plaintiff continued to pay the land tax and aggregate land tax for about 20 years from the date of acquisition of each real estate of this case, while the Defendant only paid the land tax only once after the lawsuit of this case. In light of the fact that the sales contract of this case was made after the lawsuit of this case, it is reasonable to deem that each of the real estate of this case was the real purchaser, but the actual purchaser is the Plaintiff, but only the name of the purchaser under the sales contract was registered as the Defendant and the Defendant, who was an officer of the company operated by

However, on April 24, 1989, prior to the enforcement of the Act on the Registration of Real Estate under Actual Titleholder's Name, the change in real rights was made pursuant to the title trust agreement as above, and the plaintiff did not make the actual name registration within July 1, 1996, which is the grace period stipulated under Article 11 of the same Act, and the period has expired, the defendant paid the expenses incurred by the plaintiff in accordance with the title trust agreement and acquired the title of ownership of each real estate in accordance with the title trust agreement, and the plaintiff may at any time terminate the title trust agreement and acquire the ownership of each of the above real estate until the grace period expires. Thus, the defendant acquired the full ownership of each of the above real estate by acquiring the ownership

Thus, the defendant is obligated to implement the registration procedure for ownership transfer of each real estate of this case on the ground of unjust enrichment return to the plaintiff.

3. Judgment on the defendant's defense of extinctive prescription

A. On the other hand, the above title trust agreement becomes null and void, and the plaintiff's right to claim for ownership transfer registration of each of the real estate of this case against the defendant is extinguished by the prescription after the lapse of 10 years pursuant to Article 162 (1) of the Civil Act, as the right to claim for return of unjust enrichment. The facts that the lawsuit of this case was filed after the lapse of 10 years from July 1, 1996 from the expiration of the grace period stipulated under Article 11 of the above Act are apparent in the record. Thus, the plaintiff's right to claim for ownership transfer registration of each of the real estate of this case was extinguished by prescription. Thus, the defendant'

B. On this point, the Plaintiff asserts that the title truster, the Plaintiff, has occupied the real estate of this case by delivery from the Defendant, and that the right to claim the return of unjust enrichment is not subject to the extinction of prescription.

However, there is no evidence to deem that the Plaintiff occupied each of the instant real estate from the Defendant, and even if so, if so, prior to the enforcement of the Act on the Registration of Real Estate under Actual Titleholder’s Name, the title truster lost his/her right due to the enforcement of the Act on the Registration of Real Estate under Actual Titleholder’s Name, which provides for the criminal punishment against the violation, the title truster, instead of the title truster, exercises his/her right to claim restitution of unjust enrichment on his/her behalf, on the ground that the title truster exercises his/her right to possess and use the said real estate from the beginning based on the invalidated title trust agreement. In addition, if the title truster occupied and used the real estate, the extinctive prescription of the right to claim the return of unjust enrichment on the title truster’s right to claim the return of unjust enrichment does not run even after the grace period and the prescription period of the Act on the Registration of Real Estate under Actual Titleholder’s Name have expired, and thus, the title truster’s protection of such right does not comply with the purport of the Act on the Registration of Real Estate under Actual Titleholder’s Name (see the Plaintiff’s Opinion).

4. Judgment on the plaintiff's second defense

A. Claim to approve debts;

The plaintiff received a settlement of accounts from the plaintiff for the payment of aggregate land tax and prepared a receipt in writing without any objection to the plaintiff. The plaintiff, from around 2001 to around 2004, calculated the amount of medical insurance premiums increased every year at the defendant's request and settled the amount equivalent to the amount of medical insurance premiums increased every year to the defendant. The plaintiff decided to exchange necessary sites with neighboring golf clubs around 2004, and at the plaintiff's request, there was no objection at all by the defendant in the process of dividing the above (hereinafter omitted) forest area into the real estate in the attached Tables 2 and 3, and therefore, it is re-appealed that the statute of limitations has been suspended since the defendant approved the obligation to transfer ownership of each of the real estate of this case to the plaintiff.

On the other hand, as shown in the plaintiff's argument, it is difficult to believe that Gap evidence Nos. 8 and 12, some testimony of non-party 3 witness of the first instance court and the trial court, and testimony of non-party 4 witness of the trial court are false. It is not sufficient to acknowledge Gap evidence Nos. 4-1 through 20, Gap evidence Nos. 5-1 through 8, and Gap evidence Nos. 6-1 through 7, and there is no evidence to support the plaintiff's assertion that the defendant approved the plaintiff's obligation to transfer the ownership of each real estate of this case to the plaintiff. Thus, the plaintiff's second defense is not reasonable (approval as a ground for the interruption of prescription of obligation due to the completion of prescription, is established by expressing that the debtor who is the party to the benefit of prescription or his agent is aware of the existence of the right to the plaintiff's right. However, it is difficult to view that the defendant prepared receipts for the plaintiff, as alleged in the plaintiff, and the defendant cannot be seen as having been aware of each of the plaintiff's right to real estate of this case.

B. Ground of violation of the good faith principle

(1) Summary of the Plaintiff’s assertion

In addition, the plaintiff did not have any means that the defendant asserted ownership over each of the instant real estate before the lawsuit of this case, and at any time requested the plaintiff to bear expenses related to each of the instant real estate, including land tax and medical insurance premium, and expressed explicitly to the plaintiff at any time his/her request the plaintiff the intention to implement the procedure for the registration of ownership transfer of each of the instant real estate. The defendant's assertion that the plaintiff's right to claim the transfer of ownership was extinguished when he/she paid the land tax for the first time on September 28, 2009, when he/she did not raise any objection in the course of settling the aggregate land tax and the medical insurance premium and dividing the land, is more necessary to protect the plaintiff, who is the title truster, than the title trustee.

(2) Cases

The exercise of a false obligor’s right of defense based on the statute of limitations is also governed by the principle of good faith and the prohibition of abuse of rights, which are the major principles of our civil law. Thus, in special circumstances where the obligor, prior to the expiration of the statute of limitations, was unable or considerably difficult to exercise the obligee’s right or the interruption of prescription, committed an act that makes the obligee believe that such measures are unnecessary, or the obligee was objectively obstructed, or the obligor was unable to invoke the statute of limitations after the expiration of the statute of limitations, or where there were special circumstances, such as where the obligor trusted the obligee, or where the obligor had shown the same attitude that the obligor would not invoke the statute of limitations after the expiration of the statute of limitations, or where some of the obligees of the same condition require to protect the obligee, clearly unfair or unfair, the obligor’s assertion for the completion of the statute of limitations is not permissible as abuse of rights against the principle of good faith (see, e.g., Supreme Court Decision 200

(3) Determination

In the instant case, there is no evidence to acknowledge the Defendant’s assertion that the Defendant’s defense of extinctive prescription cannot be allowed as abuse of rights against the principle of good faith. Rather, from around 2004 prior to the expiration of extinctive prescription, the Defendant rejected a request from the Plaintiff’s employees to transfer the registration of ownership transfer on each of the instant real estate several occasions, which led to the Plaintiff’s lawsuit. Accordingly, the Plaintiff brought a lawsuit in this case. The instant case constitutes a case where the Plaintiff, a title truster, still violated the said Act because it did not convert real names after the grace period and the prescription period has expired, and thus, the instant case constitutes a case where the Plaintiff, a title truster, still violates the said Act. Therefore, in light of the actual situation of real estate transactions and the purport of relevant laws and regulations, including the Act on the Registration of Real Estate under Actual Titleholder’s Name, the circumstance alleged by the Plaintiff does not constitute a violation of the principle of good faith or an abuse of rights. Therefore

5. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance shall be just and it shall be dismissed as the plaintiff's appeal is without merit. It is so decided as per Disposition.

[Attachment]

Judges Shin Chang-chul(Presiding Judge)