The case reversing the judgment of the court below on the ground that it is difficult to see that the ownership of a new building was acquired at the original time, and thus, it was entrusted with the title of ownership.

In a case where a subcontractor takes over a payment obligation for the purchase of land and completed the remaining construction works upon delegation of a right to purchase a building and then a land seller completed a registration of preservation of ownership of a building in his/her name, the case reversing the judgment of the court below that held that the subcontractor was the original acquisitor of the building on the ground that it is difficult for the subcontractor to be deemed that he/she had acquired the ownership of the building at the original acquisitor of the building, on the ground that the subcontractor was not deemed to have acquired the ownership of the building.

Articles 105 and 186 of the Civil Act / [title trust]

Plaintiff

Plaintiff (Appointed Party)

Defendant (Appointed Party) (Attorney Lee Sung-hwan et al., Counsel for the defendant-appointed Party-appellant)

Gwangju High Court Decision 91Na2570 delivered on September 1, 1993

1. The part of the judgment of the court below concerning the 6/11 portion of each of the real estate listed in the annexed list shall be reversed, and this part of the case shall be remanded to the Gwangju High Court.

2. All appeals filed by the plaintiffs and the appointed parties with respect to shares of 5/11 of each of the above immovables are dismissed, and the costs of appeal to the dismissed appeal are assessed against the plaintiff and the appointed parties.

1. We examine the grounds of appeal No. 2 to 13 as to the defendant (appointed party, hereinafter referred to as the defendant) as to the share of 6/11 of the attached list of the judgment below among the real estate (hereinafter referred to as the building in this case) in the attached list of the judgment below.

A. According to the reasoning of the judgment below, the non-party 1 purchased the above land from the non-party 1 on December 24, 198, the non-party 1 and the non-party 2 on the non-party 1 and the non-party 1 and the non-party 2 on the non-party 4 on the non-party 1 and the non-party 5 on the non-party 1 on the non-party 6 on the non-party 1 on the non-party 6 on the non-party 1 on the non-party 6 on the non-party 1 on the non-party 4 on the non-party 5 on the non-party 1 on the non-party 6 on the non-party 1 and the non-party 1 on the non-party 1 on the non-party 4 on the non-party 9 on the non-party 1 on the non-party 1 on the non-party 6 on the non-party 1 on the non-party 1 on the non-party 1 on the non-party 1 on the non-party 1 on the construction.

B. However, as determined by the court below, if 11 persons, including the plaintiff, etc., intend to be deemed to have entrusted the ownership of the building of this case to the defendant, the above non-party 2, and the non-party 3, they should be deemed to have acquired the ownership of the building of this case first, and it is difficult to view that 11 persons, including the plaintiff, etc., acquired the ownership of the building of this case as follows.

In other words, even according to the facts acknowledged by the court below, since the building of this case is not completed only by efforts and materials of 11 persons including the plaintiff, etc., barring special circumstances, 11 persons including the plaintiff et al. cannot be deemed to have acquired the ownership of the building of this case at the same time, and even if non-party 1, including the plaintiff et al. delegated the right to sell the building of this case to 11 persons including the plaintiff et al., the end of the agreement concluded on November 12, 1983 with the above non-party 1 and the non-party 11 including the plaintiff et al., the plaintiff et al. stated that "the remaining balance shall be returned to the non-party 1" in light of the whole text of the above agreement, and it is difficult for the plaintiff et al. 1 and the non-party 6 et al. to settle loans and debts against the non-party 13 et al. of the above new building including the plaintiff et al., to the effect that the remaining amount should be reverteded by the plaintiff 1 et al.

Nevertheless, the court below held that 11 persons including the plaintiff et al. entrusted the ownership of the building of this case to the defendant, the above non-party 2 and the non-party 3 on the premise that 11 persons including the plaintiff et al. acquired the ownership of the building of this case on the original condition that they acquired the ownership of the building of this case, did not err by misapprehending the legal principles as to the ownership of the new building of this case, or by failing to exhaust all necessary deliberations or by violating the rules of evidence, and such illegality affected the judgment. Therefore, the appeal

C. As such, since the defendant's appeal is well-grounded, it is reasonable for the court below to have the plaintiff, the plaintiff (appointed party), the designated party, the non-party 4, the non-party 5, the non-party 6, and the non-party 7 to re-examine and decide whether the non-party 2 and the non-party 3 held the title trust of 11 minutes and 11 minutes of each of the building of this case. Meanwhile, the grounds for appeal by the plaintiff and the plaintiff (appointed party) are based on the premise that the above title trust relationship exists (i.e., the defendant's appeal is based on the premise that the existence of the above title trust relationship exists. Thus, it is not possible to determine the legitimacy thereof separately from the above judgment on the existence of the above title trust relationship, and without further determination on the grounds for appeal by the above plaintiffs or the remaining grounds for appeal by the defendant, the part on the non-party 6 percent portion of the building

2. We examine the grounds of appeal by the defendant's legal representative as to the 6/11 portion of the real estate listed in the attached list No. 1 of the judgment below (hereinafter in this case's land).

A. According to the reasoning of the judgment below, the court below held that on December 24, 1982, the non-party 1 purchased three parcels of land, including 522 square meters, from the defendant, who is the representative of the non-party 1 and the non-party 2, on December 24, 1982. The above non-party 1 agreed to take over the above land purchase price obligations by comprehensively succeeding the status of the non-party 1 as the purchaser of the land between the non-party 11 and the non-party 11 on November 12, 1983 and the defendant agreed to take over the above land purchase price obligations by the non-party 18 and the non-party 16 on the ground that the non-party 1 and the non-party 2 did not reach an agreement to transfer 10 households out of the building of this case to the non-party 11 and the non-party 18 on the ground that the non-party 1 and the non-party 18 on the part of the above land were transferred.

B. However, even if on November 12, 1983, 11 of the plaintiff et al. entered into an agreement with the above non-party 1 to comprehensively succeed to the status of the purchaser of the land as the above non-party 1, and the defendant consented to the above agreement, as determined by the court below, if the sales contract on December 24, 1982 between the non-party 1 and the defendant was terminated due to the non-party 1's default, unless there are special circumstances such as the defendant already entered into a new agreement between the non-party 1 and the defendant on December 24, 1982, the 11 of the plaintiff et al., including the plaintiff et al., can not file a claim against the defendant for the implementation of the procedure for the registration of transfer of ownership due to the cancellation of the above sales contract, apart from the fact that the plaintiff et al. can claim restitution of the above sales contract with the plaintiff et al.

In other words, as acknowledged by the court below, if the defendant requested the above 11 person to transfer 10 households among the buildings of this case to receive the remaining land purchase and sale price, etc. from the 11 person including the plaintiff, etc. after the self-agreement on November 12, 1983 between the above 11 and the above 11 person including the plaintiff, etc., but the 11 person including the plaintiff et al. of this case did not transfer only 8 households, and it was not transferred due to the negotiation conclusion, it can be said that the defendant had an intention to restore the above sales contract if the negotiation with the 11 person including the plaintiff et al. was made smoothly, and it is insufficient to view that the above facts alone are insufficient to deem that the defendant had a new agreement to restore the above sales contract with the 11 person including the plaintiff et al., and there is no data to find it differently even after examining the record.

In addition, as acknowledged by the court below, if at the time of the self-agreement on November 12, 1983 between the above non-party 1 and the plaintiff et al., the payment period of part of part payment and remainder against the above non-party 1 had already been expired, and the defendant had already declared his/her intent to cancel the above sales contract on the ground of non-party 1's above non-party 1's non-performance of obligation, the defendant's new agreement between the plaintiff et al. on the amount of part of part of part of part of part payment and remainder of part payment of land (whether or not it should be increased or not with the previous amount), its payment period and liability for guaranteeing payment, etc. is an exceptional in light of the empirical rule that the defendant reached a new agreement with the plaintiff et al. to restore the above sales contract without any agreement with the plaintiff et al.

Nevertheless, the court below held that the defendant reached a new agreement between the plaintiff et al. and 11 on December 24, 1982 that the plaintiff et al. would restore the original sale contract. Thus, the court below committed an error of law which affected the interpretation of the expression of intent or recognized facts without evidence. Thus, the issue of this point is with merit.

Therefore, among the judgment of the court below, the part on each of the 6/11 portion of the land of this case concerning the defendant's legal representative's remaining grounds of appeal shall not be exempted from the reversal.

3. We examine the grounds of appeal by the Plaintiff and the Plaintiff (Appointed Party) as to the 5/11 share out of the building and land of this case.

Although the Plaintiff, the Plaintiff (Appointed Party), and Nonparty 4, Nonparty 5, Nonparty 6, and Nonparty 7 were transferred from Nonparty 11, Nonparty 8, Nonparty 12, Nonparty 10, and Nonparty 9 5/11 of their shares out of the instant building and land, such facts alone are not enough to directly file a claim against the Defendant for the implementation of the procedure for the registration of ownership transfer as to the said shares out of the instant building and land (see, e.g., Supreme Court Decision 88Meu1903, Nov. 14, 1989); and the lower court’s determination to the same purport is justifiable, and the lower court did not err by misapprehending the legal doctrine, such as the theory of lawsuit.

4. Accordingly, of the judgment of the court below, the part concerning the share of 6/11 of the building and land of this case (the real estate indicated in the annexed list of the judgment of the court below) shall be reversed, and remanded to the court below for further proceedings consistent with this Opinion. All appeals by the plaintiff and the plaintiff (appointed party) concerning the share of 11/11 of each of the building and land of this case shall be dismissed. The costs of appeal against the dismissal of the appeal of this case shall be assessed against

Justices Cho Chang-tae (Presiding Justice)