Plaintiff-Class (Attorney Kang Jae-sik, Counsel for the plaintiff-appellant)

Defendant (Attorney Kim Dae-young et al., Counsel for the defendant-appellant)

oly 22, 2005

Changwon District Court Decision 98Da14729 delivered on July 7, 2000

Changwon District Court Decision 2000Na7695 Delivered on May 23, 2002

Supreme Court Decision 2002Da37207 Delivered on January 14, 2005

1. The defendant's appeal is dismissed.

2. All costs of the lawsuit shall be borne by the defendant.

1. Purport of claim

On the other hand, the defendant shall pay to the plaintiff the amount calculated by adding the first and second preliminary claims of the court of first instance (the court of first instance after remanding the plaintiff) with respect to the real estate listed in the separate sheet (hereinafter referred to as the "real estate of this case"). The first preliminaryly, the defendant shall execute the procedure for the registration of ownership transfer based on the termination of title trust on the date of delivery of the copy of the complaint of this case. The defendant shall execute the procedure for the registration of ownership transfer based on unjust enrichment with respect to the real estate of this case to the plaintiff. The second preliminaryly, the defendant shall pay to the plaintiff 54,892,820 won per annum from January 24, 1995 to the date of delivery of the copy of the application for modification of the purport of this case and the cause of claim of this case, and the amount calculated by 20% per annum from the next day to the date of full payment (the plaintiff was remanded to the court of first and second preliminary claims for payment of KRW 5,704,700, as follows.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Scope of the judgment of this court;

With respect to the real estate of this case against the defendant, the plaintiff sought the performance of the procedure for ownership transfer registration and the performance of monetary payment of KRW 5,704,700 on the ground of the termination of title trust as of the date of delivery of the duplicate of the complaint of this case. The court of first instance accepted all the plaintiff's claim. However, the court of first instance prior to the remanding of the appeal by the defendant, which ordered the execution of the procedure for ownership transfer registration, shall revoke the plaintiff's claim and dismissed the plaintiff's claim, and the part of the claim for monetary payment shall be dismissed. The plaintiff appealed on the part of the claim for the performance of the procedure for ownership transfer registration, and the defendant appealed on the part of the claim for monetary payment. The Supreme Court reversed the part of the judgment prior to the remanding of the plaintiff's appeal and dismissed the defendant's remaining appeal. Accordingly, the part of the claim for monetary payment shall be subject to the judgment of this court.

2. Basic facts

(a) (Sasung omitted) During the year 192, among the plaintiff's species consisting of descendants under Article 15 (No. 15) of the 15-year-old Pacific wave, the plaintiff was incorporated into forest land and field, such as the 10-year-old Si, the Haak-si, the Haak-gu, the Haak-si, the Haak-si, and the 10-year-old land, and delegated the defendant, who is his son, the receipt of compensation for confinement, the relocation of graves, etc., and the purchase of

B. On January 20, 1995, the defendant was awarded a successful bid in the voluntary auction procedure for real estate No. 1, and completed the registration of ownership transfer under his own name on March 9, 1995, and purchased the real estate No. 2 on January 1, 1995 from Nonparty 1, and completed the registration of ownership transfer under his own name on January 24, 1995, and purchased the third real estate on December 30, 1994 from Nonparty 2, and completed the registration of ownership transfer under his own name on January 24, 1995.

C. The plaintiff's species and the defendant purchased the real estate in this case as a substitute answer to the plaintiff's title trust among the plaintiff's species, and completed the registration of transfer under the name of the defendant. After completing the registration of transfer under the name of the plaintiff's name among the plaintiff's species, the defendant prepared a title trust agreement on April 12, 1995 stating that he will comply with the termination of the title trust without delay, and completed the deed of a private agreement on the above title trust agreement with the notarial office on November 24 of that year.

[Ground of recognition] The fact that there is no dispute, Gap 2, 4 through 6 (including each number), Eul 21, Eul 3's testimony and the purport of whole pleadings

3. Judgment on the main claim

A. The parties' assertion

In order to use the instant real estate as the answer, the Plaintiff Co., Ltd. purchased the instant real estate, and around 1995, and the Defendant responded to the certification to confirm the title trust relationship. In the Plaintiff Co., Ltd., the Plaintiff Co., Ltd expressed his intention to terminate the title trust by serving a duplicate of the instant complaint, and thus, the Defendant is obliged to implement the registration procedure for ownership transfer for the reason of termination of the title trust as to the instant real estate on the date of delivery of the duplicate of the instant complaint.

As to this, the Defendant: (a) was the Defendant’s possession of the first and third real estate sold or purchased the money of an individual; (b) at the time of the preparation of the above title trust agreement, the Defendant, as a condition to suspend the Defendant’s purchase of 1,00 square meters from among the Plaintiff species, on the condition that the Defendant would buy 1,00 square meters more from the Plaintiff species in order to make it difficult for the Defendant to purchase the money as a final hand; and (c) the said condition was not fulfilled; (d) not only the said condition was not fulfilled but also the Defendant committed an act of trust, such as filing a complaint against the Defendant as embezzlement; and (e) thus, (e) the Defendant rescinded the said donation agreement by delivery of the reply from September

B. Whether the title trust relationship is established

In full view of Gap evidence Nos. 7 and 12 and the purport of the whole pleadings in the testimony of non-party 3 and non-party 4, the defendant stated that "the purchase of non-party 2 and 3 real estate on December 28, 1994 (1,895 x 20,50) 38,437,500 won" in the column for the settlement of accounts among the plaintiff's paper and submitted during the plaintiff's paper. The defendant opened the non-party 1 and the non-party 2's evidence Nos. 71 and the non-party 2's evidence Nos. 6 of this case's evidence No. 7 of this case's title trust agreement as of August 3, 1994 to manage the subscription money for non-party 1 and 3's title trust agreement, and it cannot be acknowledged that the non-party 2's testimony and evidence No. 7 of this case's title trust agreement was less valid as of November 8, 1997.

On the other hand, the fact that the copy of the complaint of this case, among the plaintiffs who are the title truster, expressed his intention to terminate the title trust with respect to the real estate of this case, is obvious in the record that it was served on the defendant on May 11, 1998. Thus, the defendant is obligated to implement the registration procedure for transfer of ownership based on the termination of the title trust on May 11, 1998.

C. Judgment on the defendant's defense dispute

(1) The defendant asserts that the above title trust is null and void in accordance with the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”), since the real estate of this case was held in title by the defendant for the purpose of evading the restriction on ownership of farmland prescribed in the Farmland Act, although the plaintiff Sejong could not own farmland upon application of the Farmland Act.

According to subparagraph 1 of Article 8 of the Real Estate Real Name Act, a clan "for the purpose of avoiding restrictions on the use of farmland by law," where a clan was registered under the name of a person other than a clan, and such title trust agreement becomes null and void. However, since the real estate among the plaintiffs is prior to the enforcement of the Farmland Act (established by Act No. 4817 of Dec. 22, 1994, enforced January 1, 1996), the former Farmland Reform Act ( repealed by Article 2 of the Addenda of the Farmland Act, effective January 1, 1996) is not applicable to the above farmland Reform for the purpose of acquiring real estate under the above provision of Article 6 subparagraph 7 of the same Act, since it is limited to a person who is eligible to purchase farmland at the time of sale, or who intends to be a farmer, and it cannot be seen that the above provision of Article 6 subparagraph 3 of the same Act still provides for the purpose of acquiring farmland under the above provision of Article 9 of the same Act for the purpose of acquiring farmland under the above provision of Article 16 subparagraph 7 of the same Act.

(2) Next, the defendant asserts that, under the current Farmland Act, the ownership of the real estate of this case, which is farmland, cannot be acquired, and the defendant's obligation to transfer the ownership is an original impossibility of performance.

However, Article 6 (1) of the Farmland Act provides that "farmland shall not be owned by any person other than a person using or using it for his own agricultural management." Article 2 of the same Act provides that "agricultural management" shall be defined as "a farmer or agricultural corporate body conducts agriculture on his own account and responsibility (Article 8 (1) 4)," "farmer" as "individual engaged in agriculture" (Article 2), and "agricultural corporate body" as "agricultural incorporated associations and agricultural corporate associations" (Article 6 (2) and (3) provides that exceptions are applicable to the above exception. Since a clan does not fall under any of the above exception grounds, in principle, it is impossible to own the real estate of this case, which is farmland under the Farmland Act, in principle, it is not possible to obtain certification or registration of transfer of the real estate of this case (Article 8 (1) 2 of the Farmland Act), and it is not possible to prove that the real estate of this case is not subject to the defendant's duty to use the real estate of this case for cultivation or registration of title trust of this case (Article 8 (2) of the Farmland Act). 97).

4. Conclusion

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

[Attachment Omission of List of Real Estate]

Judges Lee Sung-ho (Presiding Judge)