Where Article 5(1) of the former Act on the Registration of Real Estate under Actual Titleholder’s Name, the application of which was suspended until the amendment by the Constitutional Court’s decision inconsistent with the Constitution, was made on March 30, 2002, and Article 5(1) of the former Act on the Registration of Real Estate under Actual Titleholder’s Name (amended by Act No. 6683, March 30, 20

In cases where Article 5(1) of the former Act on the Registration of Real Estate under Actual Titleholder’s Name (amended by Act No. 6683 of March 30, 2002), which was suspended until the amendment by the Constitutional Court’s decision inconsistent with the Constitution, was made, Article 5(2) of the former Act on the Registration of Real Estate under Actual Titleholder’s Name (amended by Act No. 6683 of March 30, 2002), the proviso of Article 5(2) of the Addenda of the new Act provides that administrative litigation shall also apply to a disposition of penalty imposed under the former provisions of Article 5(1) and (3) of the former Act, which was a disposition of penalty imposed under the former Act prior to the enforcement date of the new Act, which was a disposition of penalty surcharge

Article 5(1) and (3) of the former Act on the Registration of Real Estate under Actual Titleholder’s Name (amended by Act No. 6683, Mar. 30, 2002); Articles 5(1) and (3), and 12 of the Act on the Registration of Real Estate under Actual Titleholder’s Name; Article 3-2 [Attachment] of the Enforcement Decree of the Act on the Registration of Real Estate under Actual Titleholder’s Name]

Constitutional Court en banc Decision 9Hun-Ga18, 99Hun-Ba71 and 11, 200Hun-Ba5, 51, 64, 65 and 85, 201Hun-Ba2, en banc Decision (Hun-Gong57, 518, Feb. 11, 2003) (Hun-Gong518, Feb. 11, 2003)

Plaintiff

The head of Gangnam-gu Seoul Metropolitan Government (Attorney Jeong Sung-sung, Counsel for defendant)

Seoul High Court Decision 2000Nu4714 delivered on May 17, 200

The judgment below is reversed and the case is remanded to Seoul High Court.

1. As to the title trust

After finding the facts as stated in its holding, the court below determined that the real owner of the instant land 1, 2, and 2 multi-family house (hereinafter referred to as “instant real estate”) was the plaintiff, and that the actual owner of the instant real estate was the plaintiff, and that the plaintiff was one of his own relative and did not own any property; that the above non-party purchased the land with the purchase price of KRW 500 million up to 500 million and constructed the multi-family house for rent; that the plaintiff was involved in the purchase of the previous land; that the plaintiff provided the above real estate as security; that the plaintiff took part in the lease of the above multi-family house; that the plaintiff was subject to provisional registration under the name of the mother of the plaintiff; that the registration was made in the name of the mother of the plaintiff; and that the plaintiff was a considerable refeasible with the fact that the real owner of the instant real estate 1, 2, and 2, and the above multi-family house (hereinafter referred to as “the instant real estate”).

In light of the records, we find that such recognition by the court below is just, and there is no violation of the rules of evidence or rules of experience as otherwise alleged in the ground of appeal.

2. As to the assessment of penalty surcharge

Article 5 (1) of the former Act on the Registration of Real Estate under Actual Titleholder's Name (amended by Act No. 6683, Mar. 30, 2002; hereinafter referred to as the "former Act") which requires the title truster, etc. to uniformly impose a penalty equivalent to 30/100 of the value of the relevant real estate has been suspended until the Constitutional Court 9Hun-Ga18, etc. declared non-conforming to the Constitution and revised. Accordingly, Article 5 (1) and (3) of the former Act on the Registration of Real Estate under Actual Titleholder's Name (amended by Act No. 6683, Mar. 30, 200; hereinafter referred to as the "New Act") provides for the imposition of a penalty surcharge within the scope of an amount equivalent to 30/100 of the value of the relevant real estate; Article 5 (1) of the former Act provides for the imposition of a penalty surcharge by the Presidential Decree within the scope of an amount to be reduced by 50/100 of the value of the real estate;

Therefore, in the case of this case, the provisions of the new law and its enforcement decree are applied in accordance with the proviso of paragraph (2) of the Addenda to the new law. Thus, the amount of penalty shall be calculated by multiplying the imposition rate of penalty by the sum of the imposition rate of penalty on the basis of the appraised value of each real estate of this case and the imposition rate of penalty based on the expiration period

Nevertheless, the judgment of the court below that the disposition of this case, which uniformly calculated and imposed a penalty surcharge equivalent to 30/100 of the value of the real estate of this case in accordance with Article 5 (1) of the former Act, is lawful, thereby making it erroneous in the misapprehension of legal principles as to the imposition of a penalty surcharge against the title truster, etc., which affected the conclusion of the judgment. The

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)