[1] Whether a person who entered into a contract with a real estate title truster to acquire real estate and only received only a registered title from a title trustee constitutes “third party” under Article 4(3) of the Act on the Registration of Real Estate under Actual Titleholder’s Name (negative)

[2] In a case where a person who followed the title of real estate held in title by the title trustee does not fall under a “third party” under Article 4(3) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, and such registration is null and void, the validity of registration in the name of a person who entered into a new legal cause based on the registration (negative) and whether a person who entered into the said interest constitutes a third party under the said provision (negative)

[1] Article 103 of the Civil Act / [title trust], Article 4 (3) of the Act on the Registration of Real Estate under Actual Titleholder's Name / [2] Article 103 of the Civil Act / [title trust], Article 4 (3) of the Act on the Registration of Real Estate

[2] Supreme Court Decision 2005Da34667, 34674 decided Nov. 10, 2005 (Gong2005Ha, 1961) Supreme Court Decision 2008Da45187 decided Dec. 11, 2008 (Gong2009Sang, 27)

Plaintiff (Attorney Shin-dong et al., Counsel for plaintiff-appellant)

Defendant (Law Firm Ko, Attorneys Yoon Woo-su et al., Counsel for the defendant-appellant)

An intervenor;

Suwon District Court Decision 2007Na7727, 7734, 7741 Decided January 23, 2009

The remainder of the judgment of the court below, excluding the part on the claim against the defendant (Counterclaim) by the independent party intervenor, is reversed, and that part of the case is remanded to Suwon District Court Panel Division. The appeal against the defendant (Counterclaim) by the independent party intervenor among the judgment below is dismissed. The costs of appeal against the defendant (Counterclaim) by the independent party intervenor are assessed against the independent party intervenor.

We examine the grounds of appeal.

1. On the part of the independent party intervenor's claim for the confirmation of ownership against the defendant

In the appellate brief, an independent party intervenor (hereinafter “ Intervenor”) did not assert any ground of appeal as to the part of the Intervenor’s claim against the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) among the judgment below, and the petition of appeal does not contain any indication in the grounds of appeal.

2. As to whether it constitutes a third party under Article 4(3) of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”).

The term "third party" in Article 4 (3) of the Real Estate Real Name Act refers to a person other than a party to a title trust agreement and a general successor, who has a new interest directly with him/her on the basis that the title trustee is a real right holder. On the contrary, a person who entered into a contract to acquire a real right to real estate with the title truster and received only the title of the registration from the title trustee does not constitute a third party under the above provisions of the law. Thus, even though the person asserts that his/her registration is valid in accordance with the substantive relations, he/she cannot assert the validity of his/her registration made based on the invalid title trust registration under Article 4 (3) of the same Act.

In addition, as long as the registration of a person who received the registration of ownership transfer from a title trustee on the registry is null and void, if a person who entered into a new legal cause with respect to the registration that is not recognized as a public trust on the real estate registration re-registers the registration based on the invalid registration, the registration of the name cannot be exempted unless there are special circumstances. Thus, rather than having a direct interest with the title trustee, a person who entered into a new interest based on the invalid registration with a person who is not a third party provided for in Article 4(3) of the Real Estate Real Name Act does not constitute a third party provided for in the above provision (see Supreme Court Decisions 2005Da3467, 3467, 34674, Nov. 10, 2005; 2008Da45187, Dec. 11, 2008, etc.).

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning, and determined that the part exceeding the defendant's inheritance shares among the registration of transfer of ownership in the name of the defendant, which was completed with respect to the inherited land of this case in accordance with the title trust agreement between the inheritors, was null and void by Article 4 of the Real Estate Real Name Act. However, with respect to the part exceeding the inheritance shares of the non-party 1 among the registration of transfer of ownership in the name of the deceased non-party 1 or the plaintiff (the counter-party 1; hereinafter "the plaintiff"), which was completed based on the above registration of transfer, constitutes a third party under Article 4 (3) of the Real Estate Real Name Act, and also, in case of the defendant's preliminary counterclaim, the plaintiff falls under the non-party 1 or the plaintiff's third party

However, such determination by the court below is difficult to accept for the following reasons.

According to the above legal principles and the facts acknowledged by the court below, the plaintiff entered into a contract with the title truster to acquire a real right to real estate, and only the title of the registration was made by the defendant who is the title trustee, or was merely a person who has a new interest based on invalid registration between the non-party 1 and the non-party 1, not a third party stipulated in Article 4(3) of the Real Estate Real Name Act. Thus, the plaintiff is not a third party stipulated in the above provision.

Nevertheless, the court below held that the non-party 1 and the plaintiff cannot seek cancellation of the registration of transfer in excess of the plaintiff's name on the premise that they fall under the third party under Article 4 (3) of the Real Estate Real Name Act. The judgment of the court below is erroneous in the misapprehension of legal principles as to the third party under Article 4 (3) of the Real Estate Real Name Act, which affected the conclusion of the judgment, and each of the grounds for appeal by the defendant

3. As to the formation of the partition of co-owned property

According to the reasoning of the judgment below, the court below rejected all of the arguments by the defendant and the intervenor on the ground that it is reasonable to view that the agreement on partition of co-owned property was made with respect to the inherited land of this case in the situation where the registration of transfer was completed explicitly or implicitly and explicitly among the inheritors, and that the remaining land was decided to be re-divided later, without reliance on the evidence that the excessive transfer registration of this case was completed by forging false or registration documents, in light of the circumstances stated in its reasoning.

However, such determination by the court below is difficult to accept for the following reasons.

First, since the registration of excess transfer of ownership in the name of the plaintiff is invalid, there is no room for recognizing the presumption of validity of the registration, and the plaintiff who claims validity of the registration is responsible for proving that it conforms to the current substantive relationship. However, the court below held that the defendant has the burden of proving that the excess transfer of ownership in the name of the plaintiff was completed by forging false or forged registration documents. Therefore, the court below did not err in the misapprehension of the burden of proof.

In addition, according to the evidence duly admitted by the court below, the intervenor and the fourth female non-party 2 were not present at the time of the division consultation on the inherited property held in title by the defendant at the plaintiff's house on December 198 at the plaintiff's house, and the intervenor did not have received the registration of transfer from the inherited land, and there was no land at which the registration of transfer was made, and all inheritors did not know that the land was inherited property, and some inheritors did not know about the details of the inherited land in this case, and it was unclear whether there was a debate about the division, and whether there was a dispute about the land in this case or the land in this case, and whether there was a debate about the division. The defendant did not know about the contents of the division at the time of the division consultation, and the defendant did not deliver the documents necessary for the registration of transfer registration to the plaintiff at the time of the division, and it was difficult to view that the title trust was established among the inheritors in this case.

Nevertheless, the court below held that, among the inherited land of this case, the co-owned property partition agreement was made explicitly or implicitly between inheritors and the remaining land, and it was decided later that the co-owned property partition agreement was made later. In this case, the court below erred by misapprehending the legal principles of burden of proof and misunderstanding facts in violation of the rules of evidence, thereby affecting the conclusion of the judgment. The grounds of appeal by the defendant and the intervenor pointing this out are

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the Defendant and the Intervenor against the Plaintiff, the part of the judgment of the court below, excluding the part of the Intervenor’s claim against the Defendant, is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. The Intervenor’s appeal against the Defendant is dismissed, and the costs of appeal against the Defendant are assessed against the Intervenor. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Shin Young-chul (Presiding Justice)