[1] The case holding that in a case where co-inheritors dispute whether a certain property is inherited property as a preliminary issue of a judgment on division of inherited property, it may directly determine whether a property is inherited property in the above judgment on division of inherited property without going through a confirmation lawsuit, etc.

[2] The case holding that in case where the real estate is registered under a title trust with three persons among co-inheritors among the co-inheritors, and one of the co-inheritors is liable to return the loan debts and the lease deposit with respect to the real estate, it is reasonable that the co-inheritors jointly inherit the right to claim for ownership transfer registration of the real estate, and the loan debts and the obligation to return the lease deposit incurred with respect to the real estate shall be divided into the shares of each co-inheritors in order

[3] The case holding that in case where co-inheritors jointly inherited the right to claim the registration of transfer of ownership from one of the co-inheritors with respect to the real estate registered in a title trust with three of the co-inheritors, the court ordered the title holder to implement the procedure for the registration of transfer of ownership in proportion to the inherited portion

[1] Articles 269 and 1013(2) of the Civil Act / [2] Articles 269 and 1013(2) of the Civil Act, Article 4(1) and (2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name / [3] Articles 269 and 1013(2) of the Civil Act, Article 4(1) and (2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name

Claimant 1 and eight others (Attorney Park Chang-chul, Counsel for the appellant)

Other party (Attorney Lee Dai-soo)

1. The other party shall implement the registration procedure for transfer of ownership based on the judgment on the confirmation date, inherited property, division of inherited property, according to each share listed in the separate sheet No. 1 to 9 as to each real estate listed in the separate sheet No. 1.

2. Each debt listed in the separate sheet No. 2 shall be divided into the Claimant and the Claimant according to their respective shares listed in the separate sheet No. 3;

3. 20% of the trial costs shall be borne by the claimant, the remainder by the other party, respectively.

The other party shall implement the registration procedure for transfer of ownership due to the confirmation of this adjudication in accordance with each share in attached Form 3 with respect to each real estate listed in attached Form 1 to the applicant.

1. Facts of recognition;

The following facts may be acknowledged by comprehensively taking into account the following facts: Gap evidence 1, 2-1 through 6, 3-1 through 9, Gap evidence 4-1, 2, 5-1, 6-1, 7-2, Gap evidence 7-1, 8-1 through 3, 9-1, 2, 10 through 12, Gap evidence 13-1, 2, 14-1, 2, 14-2, 1, 2, 4, and 5-1, 6-2, and 7-1, 7-2, Gap evidence 9-1, 10 through 12, 13-1, 13-1, 14-1, 2, 1, 2, and 4.

(a) Family relationship;

(1) The deceased non-party 1 (271225-- omitted) and the deceased non-party 2, upon completion of the marriage report on May 1, 1948, have the claimant 1, the deceased non-party 3, the claimant 2 through 5 and the other party.

(2) On October 30, 1973, the deceased Nonparty 3 and the claimant 6 completed the marriage report, and under the chain, the claimant 7, 8, and 9 was placed as his child.

(3) The deceased non-party 2 died on November 16, 1997, and the deceased non-party 3 died on June 20, 1998, and the deceased on March 10, 2003.

(b) Property relations;

(1) Around January 20, 2002, the decedent sold 536 sites and the 3rd floor building in Sungnam-dong, Sungnam-dong, Sungnam-dong, 536 sites and the 3rd floor to Gangnam-do, other than the claim (A-1, 6-1).

(2) On February 25, 2002, the decedent purchased each real estate listed in the separate sheet No. 1 (hereinafter referred to as the "real estate of this case") in his name from the other claim's sulfur rights (hereinafter referred to as "real estate of this case") in 330,000,000,000 (A 6-2), with the sulfur rights, 20,000,000 for the intermediate payment as the down payment on March 13, 2002, and 90,000 for the intermediate payment as the intermediate payment on March 13, 2002.

Won and around April 13, 2002 paid KRW 197,000,00 for the remainder of the purchase price, respectively, and KRW 23,000,000 for the remainder of the purchase price and KRW 23,000,000 for each lessee’s obligation to refund deposits to the wife of the instant real estate and of the Kim Heavy and the YY at the time of the remainder payment (= KRW 10,00,000 + + KRW 8,000,000 + KRW 5,000 + KRW 00). The remainder of the purchase price was replaced by taking over an amount equivalent to KRW 21-1,00 for each lessee’s obligation to refund deposits to the wife of the instant real estate at the time of the remainder payment of the remainder (A-2,7-1, 2, and A-1-3).

(3) Of the above purchase price of KRW 307,00,000,000 paid to YEA (=20,000,000 + KRW 90,000 + KRW 197,000,000 + KRW 80,000,000), the decedent set up a collective security right against the real estate of this case to Magsung Agricultural Cooperative with the debtor on April 11, 2002, and appropriated the money borrowed under the name of the other party on April 13, 202 from the above association as shown in Table 2 List 1, and the remaining money was appropriated for the sale price of the building at Sungnam City.

(4) At the time of the purchase of the instant real estate, the decedent sought joint reversion of the instant real estate to the claimant and the other party. However, in order to acquire the instant real estate in a land transaction contract zone, the requirements were required to reside in the relevant zone. At that time, the decedent agreed to place the instant real estate in the sole name of the other party between the claimant, the other party, and the seller’s sulfur rights. Accordingly, the other party completed a provisional disposition registration on May 24, 2002 with respect to the instant real estate in order to secure the implementation of the procedure for the registration of ownership transfer in his own name until the permission for the land transaction contract was obtained (A-1, 2, 13-1).

(5) On October 31, 2002, the other party acquired permission for a land transaction contract of the instant real estate from the Silung City (A-1-3), and around that time, the other party completed the registration of transfer of ownership on the instant real estate on December 6, 2002 by using a sales contract prepared for processing the buyer as the other party between sulfur rights and the buyer (A-1, 2, 12).

(6) On the other hand, the claimant 3 has been trying to engage in the decedents, such as realizing the instant real estate and arranging the loan in the process of the loan under the name of the other party, and around December 2002, the remaining petitioners and the other party received gold of KRW 1,50,000 (However, the claimant 6, 7, 8, and 9 collectively transferred gold of KRW 1,50,000) from each other, and appropriated the above money for expenses incurred in relation to the transfer of ownership, such as the above transfer of ownership, and delegated the above registration to the certified judicial scrivener, and kept the registration certificate, and received the rent from the lessee of the instant real estate after the purchase of the instant real estate (A-1, 2, 10-12, 13-1, 2).

(7) Around April 30, 2002, the claimant 3 newly concluded a lease agreement with the lessor as 3 with respect to the instant real estate between the above lessee's heart and Kim Heavy, with the lease deposit amount of KRW 10,000,000 and KRW 8,000,000, respectively. Around that time, the lessee returned the lease deposit amount of KRW 5,000,000 to the south of the above lessee's sulfur group. On September 5, 2002, the lessee leased the instant real estate with KRW 10,000 as the claimant 3,00,000 as the lease deposit amount of KRW 10,000,000, the lease deposit amount of KRW 300,000,000 to the above ancient group around October 203, 200, KRW 10,0000, KRW 208,000 and KRW 208,000,00,00.

(8) The claimant 3 used the amount of the rent received from the above tenant, the return of the deposit for lease to the Republic of Korea in the above sulfur area, the payment of interest from the other party's loan to June 2003, the payment of property tax for the first period of 2003 (A), and the other party paid interest after July 2003 on the above loan obligation, and the other party paid property tax for the first period of 2003 real estate (B and 4).

2. Determination:

(a) Determination of the heir and the share of inheritance;

According to the above facts, the claimant 1 to 5 and the other party, who are children of the inheritee, are the inheritors of the inheritee, and the claimant 6, 7, 8 and 9, who are the wife and children of the inheritee 3, who are the wife and children of the inheritee, have the legal portion of inheritance as shown in the attached Table 3, respectively.

B. Determination as to the instant real estate

(1) The parties' assertion

The claimant asserts that the real estate of this case is a property trusted to the other party and actually owned by the decedent, and that it should be viewed as an inherited property. Accordingly, the other party asserts that the real estate of this case was donated from the decedent, so it cannot be viewed as an inherited property.

(2) Whether to determine the preliminary question

First of all, in a case where the co-inheritors dispute on which property is not inherited property as a preliminary question of a judgment on the division of inherited property, it is reasonable to directly determine whether the property is inherited property as a preliminary question in the judgment on the division of inherited property, if the judgment on whether it is an inherited property in the judgment on the division of inherited property can be directly made after the confirmation of whether the property is inherited property is inherited property through a separate confirmation lawsuit, etc., or whether it is a preliminary question in the judgment on the division of inherited property, and if the judgment on whether it is inherited property in the judgment on the division of inherited property is not recognized as res judicata effect, then the above judgment on the division of inherited property may lose its effect within the scope of the judgment. However, in the judgment on the division of inherited property in this case, it is reasonable to directly determine whether it is inherited property as a preliminary question in the judgment of this case, in consideration of various circumstances such as the fact that the claimant wants to obtain a judgment on whether it is inherited property in this case, and

(3) Whether it is a title trust or a gift

Therefore, in light of various circumstances such as whether the establishment of the instant real estate in the name of the other party constitutes a title trust, whether it constitutes a gift, and whether it constitutes a gift, and there is no obvious reason to independently donate the instant real estate to the other party by excluding the applicants. On the contrary, there was a real necessity of title trust in the land transaction contract and permission zone. In addition, in the process of the sale and purchase of the instant real estate and registration, not the other party but the third party, and the third party received the rent from the lessee, and the other party did not raise any objection to it, and the expenses incurred in the transfer, etc. of the instant real estate are to be borne by the claimant and the other party corresponding to each share of inheritance, it is reasonable to deem that the instant real estate was trusted by the predecessor to the other party.

In addition, as long as the real estate in this case is deemed to have been trusted to the other party, the other party's main defense against this case's trial by asserting that the real estate in this case was donated to the other party, and that it cannot be seen as an inherited property, is without merit.

(4) Effect of title trust and inherited property

Therefore, the above title trust constitutes a three-party registered title trust. According to Article 4(1) and the main text of Article 4(2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, all title trust agreements between the title truster and the title trustee and the ownership transfer registration to the title trustee are invalidated. Thus, in this case, the title trust agreement and the ownership transfer registration to the other party between the decedent and the other party are null and void. Accordingly, the ownership transfer registration under the name of the other party is cancelled, and the ownership shall be returned to the seller’s lute rights

However, unlike the so-called contract title trust, in the case of a three-party registered title trust, regardless of whether the seller knew of the fact of the title trust, the sales contract between the title truster and the seller is valid (see Supreme Court Decision 2001Da61654, Mar. 15, 2002; Supreme Court Decision 2001Da32120, Sept. 5, 2003; Supreme Court Decision 2001Da32120, Sept. 5, 2003). In this case, the sales contract between the decedent and the seller is still valid, and the decedent still holds the right to claim the registration of ownership transfer based on the above sales contract as to the yellow rights, and the heir of the deceased will jointly inherit the right to claim the registration of ownership transfer

(5) Method of division

The right to claim for registration of transfer of ownership is a divisible claim (see Supreme Court Decision 79Da14, Feb. 24, 1981) and is naturally reverted to the inheritor according to the statutory share of inheritance at the same time, so it is not necessary to make it the object of division of inherited property. Therefore, in a separate civil lawsuit, the claimant asserts that there exists a right to claim for registration of transfer of ownership according to the share of inheritance and seek cancellation of the registration of transfer of ownership in the name of the other party in subrogation of the seller in lieu of the seller's right of sulfur right and seek the registration of transfer of ownership to his own. However, the above conclusion seems to be inappropriate because it forces the claimant to take a right bypass without disregarding the intention of the claimant who wishes to recover through

Therefore, it is reasonable to allow the claimant to file an application for registration on his own without the cooperation of the other party after the judgment becomes final and conclusive by ordering the other party to perform the procedure for the registration of ownership transfer according to the inherited portion. The above registration of transfer is different from the true process of alteration of rights or the current state of rights, so it is possible to file an application for registration as above. In this case, the ground for registration is reasonable as "an adjudication on the division of inherited property". As such, even if one of the inheritors (the other party) is ordered in the adjudication on the division of inherited property, it cannot be said that it goes beyond the scope of the judgment authority of this court.

(6) Conclusion

Therefore, the other party is obliged to implement the registration procedure for transfer of ownership based on the judgment on division of the fixed date inherited property in accordance with each share in attached Form 1 through 9 of the attached Table 3 with respect to each real estate listed in the attached Table 1.

C. Determination as to loan obligations and lease deposit obligations

(1) Whether the case is subject to the trial

First of all, in the instant case, the claimant only sought the division of the instant real estate, and does not explicitly seek the division of the other party’s loan obligations and the obligation to return the lease deposit under the name of the other party, but in the instant case, it is mainly disputed whether the instant real estate is inherited property, and in the event that the instant real estate is determined as inherited property, there is no dispute between the parties regarding the division of each of the above obligations regarding the instant real estate. Since each of the above obligations is closely related to the instant real estate, it is closely related to the instant real estate, the said each obligation is also related to the instant judgment, and there is a need to settle the dispute between the parties at the same time, each of the above obligations should be considered

(2) Loans under the name of the other party

In the case of the above debts, in consideration of various circumstances, such as the fact that it occurred to cover the purchase price of the instant real estate, the fact that the instant real estate was held in title trust to the other party, and there was a need to obtain loans in the name of the other party instead of in the name of the other party, and the fact that the claimant, despite having received the ownership of each of the instant real estate according to the shares of inheritance, deemed that only the above debts are borne by himself by the other party despite having received the ownership of each of the instant real estate according to the shares of inheritance does not accord with the equity among co-inheritors, although

Meanwhile, in a case where the content of performance, such as a pecuniary obligation, is jointly inherited, such performance shall be divided and reverted to co-inheritors according to the statutory share of inheritance at the time of commencing inheritance (see Supreme Court Decision 97Da8809, Jun. 24, 1997). Therefore, the above loan obligation, which is a divisible debt, shall not be subject to division of the inherited property of this case, in principle. However, as seen above, in this case, if the other party orders the other party to perform the registration procedure of transfer of ownership in accordance with the share of the inherited property of this case, as long as the other party orders the other party to perform the registration procedure of transfer of ownership in accordance with each share of the inherited property of this case, the relationship of attribution of the above obligation, which is still under the sole name of the other party, shall be established, and thus, it is reasonable to divide the above obligation and the other party

(3) An obligation to return each lease deposit with three claimants.

In the case of the above debts, the debts incurred by the ancestor upon acquiring the obligation to return the lease deposit for the instant real estate at the time of the purchase of the instant real estate by the ancestor, and as seen earlier, deeming that the claimant 3 solely bears the above debts despite having acquired the ownership of each of the instant real estate according to the inherited portion, does not accord with the equity among the co-inheritors. In light of various circumstances, although the above debts are formally in the name of the claimant 3, it is reasonable to view that the debts are the debts owed by the decedent, who is the purchaser of the instant real estate, as

Meanwhile, in light of the nature of the obligation to return lease deposit, since the obligation is indivisible or (see Supreme Court Decision 98Da43137 delivered on December 8, 198) even in cases where the inheritor jointly succeeds to an indivisible obligation, the inheritor is liable for the relevant obligation only within the limit of the inherited property (see Supreme Court Decision 80Da756 delivered on June 24, 1980). Therefore, in a judgment on division of inherited property, it may be deemed that there is no particular benefit to divide the obligation to return lease deposit into the inherited property so that the obligee is liable for the inherited property. However, in this case, as seen earlier, insofar as the obligee orders the other party to perform the registration of ownership transfer according to each inherited property, as long as the obligee orders the other party to perform the registration of ownership transfer according to each inherited property, it is appropriate to make clear resolution of the dispute by establishing the relationship of attribution of the above obligation with the third sole claimant and the other party, and therefore

(4) Conclusion

Therefore, each debt in the separate sheet No. 2 is divided into the claimant and the other party's share in the separate sheet No. 3.

D. Determination as to interest on loans and property tax

The other party asserts that the claimant should bear the interest and property tax on the loans he paid with respect to the real estate of this case according to his share of inheritance. Thus, since the above interest and property tax are paid in relation to the inherited property, it is appropriate to resolve the dispute by being included in the object of division of inherited property even though they are not inherited property. However, in the case of this case, since the real estate of this case and the loan obligation are in the name of the other party, the interest and property tax are continuously generated until this judgment becomes final and conclusive, even if the above portion is settled in this judgment, it is necessary to settle the above part again. In the case of this case, even if the claimant's third party has already received or will receive the above part, the part excluding the portion used for treatment expenses, return of lease deposit, payment of interest and property tax as seen above, etc., as the lessor has already received or will receive it in the form of the third party, the above interest and property tax shall not be the object of division of inherited property of this case.

3. Conclusion

Therefore, this case's petition for partition of inherited property shall be judged as above and judged as per Disposition.

[Attachment 1]: omitted in the real estate list.

[Attachment 2]: omitted of a debt list;

[Attachment 3]: omitted list of equity;

Judges Kim Jong-soo (Presiding Judge)