(영문) 대구고등법원 2013.1.9.선고 2012나2881 판결

B. Pursuant to the alternative counterclaim claim changed at the trial, the amount calculated by applying each ratio of 5% per annum from the following day to the date of full payment, and 20% per annum from the next day of December 22, 2012 to January 9, 2013 to the date of full payment, for the Plaintiff (Counterclaim Defendant), KRW 117,168,22, for the Plaintiff (Counterclaim Defendant) and KRW 78,112,148 for the Plaintiff (Counterclaim Defendant B), and for each of them.

C. The Defendant (Counterclaim Plaintiff)’s remaining conjunctive claim is dismissed.

2. All appeals filed by the Defendant (Counterclaim Plaintiff) against the principal lawsuit are dismissed.

3. The total costs of the lawsuit are divided into a principal lawsuit and a counterclaim, which is divided into two parts, and one shall be borne by the Plaintiff (Counterclaim Defendant) and the remainder by the Defendant (Counterclaim Plaintiff) respectively.

4. Paragraph 1-b. A provisional execution may be effected.

Purport of claim and appeal

1. Purport of claim

(a) Main claim;

The Defendant (Counterclaim Plaintiff; hereinafter referred to as the “Defendant”) performed the procedure for the cancellation registration of ownership transfer registration, which was completed on October 5, 2007 by the Daegu District Court 000 registry office of 0000 with respect to each land listed in the separate sheet 1 and 3 (hereinafter referred to as “each land of this case”) to E. The Defendant (Counterclaim Defendant, hereinafter referred to as the “Plaintiff”) stated in the separate sheet 2 (hereinafter referred to as the “instant building”) against the Plaintiff (Counterclaim Defendant and the Plaintiff). The Defendant fulfilled the procedure for the registration of ownership transfer with respect to 2/5 shares of the same building, which was owned by the Plaintiff, due to the recovery of their true names, as to 3/5 shares of the instant building.

(b) Counterclaim;

(1) In the first place, the defendant, the plaintiff A, the plaintiff B, the plaintiff B, and the plaintiff B, the 162,400,000 won and each of them shall pay 20% interest per annum from the day following the delivery of the copy of the counterclaim of this case to the day of complete payment.

(2) Preliminaryly, the Defendant shall pay to the Plaintiff, the Plaintiff A, the Plaintiff B, and the Plaintiff B, the 150,112,000 won, and each of them at a rate of 20% per annum from the day following the delivery of the copy of the claim for the counterclaim and the modification of the cause of the counterclaim of this case to the day of complete payment (the Defendant changed the object of selective counterclaim into the primary and preliminary counterclaim at the trial, and reduced the part corresponding to the preliminary counterclaim).

2. Purport of appeal

The part against the defendant among the part against the defendant in the judgment of the court of first instance shall be revoked, and the corresponding part shall be dismissed, and a judgment shall be requested, such as the statement in the purport of the counterclaim of the defendant.

Reasons

A principal lawsuit and a counterclaim shall be deemed simultaneously.

1. Basic facts

A. The Plaintiffs are the husband (Plaintiff A) and children (Plaintiff B) of the net F (hereinafter referred to as “the deceased”) who had been active from around 1995 to February 4, 2009, and the Defendant refers to three women of South and North Korea after having died with the husband. From the end of 1997 to the time of the deceased’s death, the Plaintiffs transferred money to the deceased’s customer from the end of 1997 to the time of the deceased’s death, and became the title holder of the instant real estate (land: the title of registration, building: the title of building permit) in which the deceased’s family reside.

B. Of the money remitted by the Defendant to the Deceased (mainly, the Daegu Bank in the name of the Deceased) (164-08-*******-7 account, which was deposited in the said account, hereinafter referred to as the “net account”), the amount confirmed as financial circuit present from February 18, 2002 to November 20, 2009, the sum of the money transferred over about 76 occasions to the Deceased’s account from February 1, 2002 to November 20, 2009, and KRW 141,531,370, and KRW 15020-51-*** 200-51-20* from the Defendant’s account and deposited in the Plaintiff’s account in the name of the Plaintiff (the sum of KRW C’s new bank in the name of the deceased C, KRW 313-02-2**), KRW 200, KRW 30130,3701, 2005, 2004.

C. Around May 2006, the Deceased purchased each of the instant lands from E on September 5, 2007 by using a device for moving his residence from the Daegu City to the area outside of the school due to health problems. At the time, the Deceased, the Plaintiff A, the seller, and the broker, prepared a sales contract (Evidence A 2) on E and the deceased’s name in the name of the deceased, and additionally prepared a sales contract (Evidence A 3) with respect to each of the instant lands under the name of the Defendant for the registration of ownership transfer, with the consent of E, and completed the registration of ownership transfer under the name of the Defendant as of October 5, 2000 registry office with respect to each of the instant lands as of October 5, 2007.

D. Around April 17, 2008, the deceased started to build the building of this case under the name of the owner of each of the instant land with the approval of the use on November 13, 2008, and died on February 4, 2009, when the sick was hospitalized in the wind where the sick age becomes worse, but the deceased was inherited to the plaintiff A and the plaintiff B at the rate of 3/5,2/5, and after that, the plaintiff kept the sales contract and the certificate of registration on each of the instant land, the deceased occupied and used the instant real estate while keeping the sales contract and the certificate of registration on each of the instant land.

E. However, the defendant, in collusion with the co-defendant I of the first instance trial on August 25, 2009, completed the registration of preservation of ownership in the name of the defendant with respect to the building of this case without the plaintiffs, and completed the loan of KRW 150 million from the J Saemaul Bank on the same day, and the mortgagee of this case completed the registration of creation of a neighboring mortgage (hereinafter referred to as the "registration of creation of a neighboring mortgage of this case") with regard to the real estate of this case with the above imprisonment without prison labor, the debtor, the debtor, and the maximum debt amount of the debt amount of the defendant 195 million won, and completed the registration of establishment of a neighboring mortgage of this case on August 27, 2009 on the same day, and completed the registration of establishment of a right of creation of a neighboring mortgage of this case on September 2, 2009 by changing the name of the debtor from the defendant to I on the same day on the same day.

F. Accordingly, on September 25, 2009, Plaintiff A filed a complaint with the Defendant and I. The Defendant and I concluded that “the real estate of this case, which the deceased under title trust with the Defendant, was embezzled in collusion with the Defendant” in the Daegu District Court Decision 2010Kadan568, 1964 (Merger), on May 12, 2011, the Defendant was sentenced to 10 months, and I was sentenced to 1 year, respectively, and the Defendant was sentenced to 201No1792, Sept. 30, 201, which was the appellate court (the alteration of sentence to 2 years a suspended sentence to 10 months), and the final appeal against each of the Supreme Court Decision 201Do14171 (I) Decided November 22, 2011, which was the final appeal.

G. Meanwhile, on November 11, 2009, I filed a claim suit against the Plaintiff B, including the name of the building seeking the delivery of the instant real estate by the Daegu District Court 2009Kadan75601, but on June 28, 201, on the ground that “the registration of transfer of ownership in the name of the Defendant or I was null and void because it was made without the consent of the deceased or his heir who is the actual representative of the instant real estate,” and the said civil judgment became final and conclusive around that time.

[Ground of recognition] Unsatisfy, Gap evidence 1 to 26, Eul evidence 1, Eul evidence 1 to 6

(including each number) part of each entry, however, subparagraph A(13), which is not believed later,

Part of the evidence-2, evidence 24, evidence Nos. 4, 5,10, 14, 15, and 17 are stated in the evidence Nos. 1-4, 5, 17

(other) the decision of the court of first instance to order the Daegu Bank of the Court of the first instance and the new Bank to submit information on convergence transactions;

division, the purport of the whole pleading

2. The parties' assertion

A. The plaintiffs

(1) The instant real estate was purchased by or newly constructed by the deceased and was entrusted to the Defendant under the seller’s consent. Since the title trust agreement on the instant real estate between the deceased and the Defendant is both null and void, the Defendant shall perform the seller E with the procedure for registration of cancellation of the ownership transfer of the instant land, and implement the procedure for registration of ownership transfer for the Plaintiffs, the heir of the deceased, who were the deceased, due to the restoration of the real name.

(2) Of the amount that was deposited to the deceased in G’s name is not the money of the defendant, but the money that the defendant remitted to the deceased’s family members is merely the money that the defendant voluntarily sent to the defendant for the purpose of securing the stability of the mind, and does not constitute custody or fraud as alleged by the defendant, and even if the defendant had a duty to pay the part to the plaintiffs as it constitutes the money custody or fraud, the negligence of the defendant who has remitted money with no care to determine the amount or the amount of embezzlement of the defendant recognized by the above criminal decision should be taken into account.

B. Defendant

(1) The instant real property is owned by the Defendant only by the Defendant’s possession of the money that the Defendant transferred to the Deceased.

It is not the property that the deceased trusted to the defendant.

(2) The defendant has the obligation to leave the crossing of money, such as the death of his family members, to the deceased, and transfer the money to the deceased at least 438,183,970 won of the defendant's money (the money transferred in the name of the defendant) and the money borrowed from Dong G (the money transferred in the name of G) from Dong G. The plaintiffs, who are the heir of the deceased, have the obligation to return the money to the defendant, and to pay 406,00,000 won (the amount of money as at the time of the submission of the complaint), which is the primary return of the money for custody, and the amount of money acquired in preliminary, which is 375,280,620 won (the total amount of money transferred one time or more).

3. Judgment on the plaintiffs' main claim

A. Relevant legal principles

In a civil trial, even if it is not bound by the finding of facts in a criminal trial, the facts found guilty of the same facts are material evidence. Thus, barring any special circumstance where it is deemed difficult to adopt a judgment of facts in a criminal trial in light of other evidence submitted in the civil trial, the facts opposed thereto cannot be acknowledged (see, e.g., Supreme Court Decisions 2007Da69148, 69155, Feb. 14, 2008; 197Da24276, Sept. 30, 197). The facts established in a civil case that has already been established are material evidence unless there are special circumstances, and thus, it cannot be rejected without reasonable reasons (see, e.g., Supreme Court Decision 2008Da92312, 92329, Sept. 24, 2009).

B. Whether the instant real estate constitutes a title trust property of the deceased

In light of the following circumstances, the deceased's real estate was purchased or newly constructed and transferred to the defendant, and the above facts were 0: 20G witness G, part of the deceased's testimony, and the defendant's personal examination (except for the subsequent part) as to whether the deceased's real estate was transferred to the defendant; 1. The real estate of this case was transferred to the defendant 2, 3. The head of the 20G government office and the 20th government office and the 20th government office and the 1964 government office and the 20th government office and the 0th government office and the 0th government office and the 20th government office and the 20th government office and the 0th government office and the 20th government office and the 20th government office and the 20th government office and the government office and the government office and the government office and the government office and the government office and the government office and the government office and the government office and the government office and the government office and the government office and the government office.

C. Sub-decision

Therefore, the registration of transfer of ownership in the name of the defendant as to each of the land of this case was made by the so-called "title trust with the intermediate omission", and is null and void pursuant to Article 4 (1) and (2) of the Act on the Registration of Real Estate under Actual Titleholder's Name, and the ownership is still reserved to E, which is the seller. Therefore, the plaintiffs who are the deceased's successors, who are entitled to claim the transfer of ownership due to the above sale, can seek the cancellation of the above transfer of ownership in the name of the defendant against the defendant in subrogation of E, and accordingly, the defendant is liable to perform the procedure for the cancellation registration of transfer

In addition, registration of preservation of ownership in the name of the defendant as to the building of this case is based on a nominal trust agreement between the deceased and the defendant, and is null and void pursuant to Article 4 (1) and (2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name. Thus, the defendant is obligated to implement the registration procedure for transfer of ownership based on the recovery of each of the shares of inheritance (Plaintiff A3/5, Plaintiff B2/5) among the buildings of this case to the plaintiffs who inherited the property of the deceased who was original

4. Judgment on the defendant's counterclaim

A. Judgment on the primary counterclaim

Since the defendant asserts that the money remitted to the deceased is a custody amount, the fact that the defendant remitted a total of KRW 241,531,370 to the deceased on about seven and nine occasions from February 18, 2002 to November 20, 209 is as mentioned above (the defendant's assertion that the amount deposited to the net account in the name of Dong resident G is KRW 22,20,000,000, which is the money remitted to the defendant cannot be accepted as follows). It is difficult to acknowledge that the above money is a custody amount scheduled to be returned to the defendant, and it is hard to acknowledge that there is a lack of evidence to acknowledge that there is a lack of evidence to acknowledge that there is a lack of evidence to acknowledge that there is a witness or witness evidence of the defendant as the result of the defendant's testimony or examination.

Rather, comprehensively taking into account the above recognized facts and quoted evidences, namely, ① from February 18, 2002 to November 20, 2009, the Defendant remitted total of KRW 241,531,370 to the deceased for about seven years and nine months, but it appears that the deceased did not demand the return of the above money once. ② The remittance of the money to approximately 76 times, a small amount of KRW 100,000,000 to KRW 100,000,000,000,000,000 won, and the Defendant also recognized the fact that he paid a certain amount to the deceased for the purpose of viewing or attempting to do so. ③ In the criminal investigation and trial process of the above case, the Defendant did not want to return the deceased’s money to the deceased, and even if the deceased died of his family, the Defendant did not want to return the money to the deceased (the Plaintiff’s 10,000,000).

Therefore, the argument on this part of the defendant's assertion on the premise that the money transferred to the deceased is an estimated deposit to be returned cannot be accepted without further review.

B. Determination on the conjunctive counterclaim

The Defendant: (a) remitted not less than KRW 438,183,970 in total to the Deceased of one’s own money (the money transferred in the name of the Defendant) and the money borrowed from G (the money transferred in the name of G) from G; and (b) claimed that the total amount of more than KRW 10,000,000 per time is the money that the Deceased acquired; and (c) thus, the Defendant would divide the money transferred in the name of G and the money transferred in the name of the Defendant.

(1) As to the money remitted under G name

In full view of the facts admitted as above and the purport of the entire pleadings, the amount deposited into the deceased’s account in the name of Dong living together with the Defendant’s vegetable life consisting of KRW 22,200,000,000 in total, and in full view of the aforementioned recognized facts and quoted evidence, the fact that the amount exceeding KRW 1,00,000 in total is 180,000 in total among the above transferred amount can be acknowledged

However, with the view of the fact that the above money is the defendant's money remitted to the deceased who lent from G, it is difficult to believe that part of the statements in Gap evidence Nos. 13-2, 24, Eul evidence Nos. 13-1, and Eul evidence Nos. 4, 5, 10, 14, 15, and 17, part of the witness G of the trial court, part of the witness G of the trial party, the defendant's examination result of the party's own testimony of the defendant, and the other quoted evidences alone are insufficient to recognize them, and there is no other evidence to prove them.

Rather, comprehensively taking into account the facts admitted as above and the purport of the whole pleading, namely, ① around 204, G appears to have been engaged in monetary transactions unrelated to the defendant, such as requesting the deceased to see her husband's death or paying the deceased the price, etc. with the introduction of L, which is another words, around 2004, as it appears that G would have become aware of the deceased, and ② on October 5, 2010, G would have been present as witness of the Daegu District Court Decision 2010No. 568, Daegu District Court Branch Decision 2010,000,000 won to 20,000 won to the deceased, and it would not have any relationship between G and 205,000 won to transfer money to 20,000 won to the deceased, and the defendant would not have any direct relation between G 105,000 won and 105,000 won to the deceased.

Therefore, the defendant's assertion on this part, which is premised on the defendant's transfer of money that the amount transferred in the name of G transferred from G to the deceased, cannot be accepted without further review.

(2) As to the money remitted under Defendant’s name

First of all, during about seven years and nine months from February 18, 2002 to November 20, 209, the Defendant remitted total of KRW 241,531,370 to the Deceased on about 76 occasions as seen earlier. In full view of the facts acknowledged as above and the purport of the entire pleadings, the amount remitted to a large amount of KRW 10 million or more out of the above remitted amount can be acknowledged as constituting a total of KRW 195,280,370, out of the statement of remittance under the Defendant’s name among “the remittance status of KRW 10 million or more” as follows.

Table of the current status of remittance of at least ten million won;

A person shall be appointed.

Furthermore, the above remitted money constitutes a fraud by 00 won or more, and it does not necessarily constitute a fraud by 100 won or more. However, if the money was transferred to 10 won to 20,000 won by 10 won or more, it can be deemed that the Defendant had received money from 20,000 won by 10 won or more (see, e.g., Supreme Court Decision 2007Do10917, Feb. 14, 2008). It is recognized that the Defendant had received money from 20,000 won by 10,000 won or more, and that the Defendant would have received money from 10,000 won by 10,000 won or more (see, e.g., Supreme Court Decision 200Hun-Ga10, Jan. 1, 200). The Defendant did not introduce money to 20,000 won more than 1,000 won.

As to this, the plaintiffs asserted that even if the deceased acquired money by fraud of the defendant, the defendant's negligence or embezzlement should be considered (the argument that the amount of embezzlement should be considered seems to be offset against the defendant's claim by making the defendant's automatic claim for damages arising from the defendant's crossing act. Therefore, it is not permissible to argue that the person who intentionally committed a tort by using the victim's care constitutes an intentional tort. It is not permissible to assert that the person who intentionally committed a tort reduces his/her liability on the ground of the victim's negligence immediately (see, e.g., Supreme Court Decision 2010Da21276, Jul. 8, 2010). If the obligation is due to an intentional tort, the debtor cannot set-off against the creditor (see Article 496 of the Civil Act). Accordingly, the plaintiffs' assertion on this part is not acceptable.

C. Sub-decision

Therefore, the plaintiffs who inherited the deceased's liability for damages against the defendant in relation to the above fraud amounting to KRW 195,280,370 shall be liable to the defendant according to their inheritance shares; the plaintiff A shall be liable to pay damages at the rate of 20% per annum as stipulated in the Civil Act from December 22, 2012 to January 9, 2013, which is the date following the delivery of the copy of the claim for the counterclaim and the application for change of the cause of the claim sought by the defendant; and the plaintiff A shall be liable to pay damages at the rate of 117,168,222 won (19,280 won X3/5); the plaintiff B shall be 78,112,148 won (19,280,370 won x 2/5); and damages for delay calculated at the rate of 20% per annum as stipulated in the Act on Special Cases Concerning the Promotion of Legal Proceedings, etc.

4. Conclusion

Therefore, all of the plaintiffs' claims against the defendant are accepted in its reasoning, and the changed defendant's main claim against the defendant is dismissed as without merit. The plaintiff's main claim against the defendant is accepted within the scope of the above recognition and the remaining main claim is dismissed as there is no ground. Accordingly, the part of the judgment of the court of first instance as to the main claim is just low and reasonable, and all of the defendant's appeal against it is dismissed as it is without merit. The part concerning the main claim among the judgment of the court of first instance as to the main claim in the judgment of the court of first instance as to the main claim is unfair in part of the conclusion. Thus, it is so decided as per Disposition by the assent of all participating Justices.