(영문) 서울고등법원 2020.1.10.선고 2018나2029205 판결

The defendant shall pay to the plaintiff 420,000,000 won with 5% per annum from April 11, 2014 to the service date of the application for modification of the purport of the claim and the cause of the claim as of March 6, 2018, and 15% per annum from the following to the day of full payment.

2. Purport of appeal

A. The plaintiff

Among the judgment of the first instance, the part against the plaintiff corresponding to the amount to be paid next shall be revoked.

The defendant shall pay to the plaintiff 150,009,797 won with 5% interest per annum from April 11, 2014 to the service date of the application for modification of the purport of the claim and the cause of the claim as of March 6, 2018, and 15% interest per annum from the following to the day of full payment.

B. Defendant

It is as set out in paragraphs 1 and 2 of this Decree.

Reasons

1. Basic facts

A. On October 20, 2011, C completed the registration of transfer of ownership on the ground of sale on October 19, 201, with respect to each land listed in the [Attachment 1] list (which was later merged as shown in [Attachment 2] list (hereinafter “each land of this case”).

B. On April 11, 2014, the Defendant completed the registration of ownership transfer for each of the instant land to D on April 7, 2014.

C. On December 7, 2011, the Plaintiff transferred each of the instant land to the Defendant under mutual agreement with the Defendant. The Defendant has no right to sell and purchase each of the instant land, and all the right to sell and purchase the instant land is the Plaintiff. The Defendant only has transferred the name of the Plaintiff, and there is no investment in money.” (hereinafter referred to as the “instant confirmation”).

【Non-contentious facts, Gap evidence 1, 2, and 21 (including the number; hereinafter the same shall apply) and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

1) Claim for damages

A) Since the Plaintiff purchased each of the instant lands from C and conducted title trust to the Defendant by means of so-called “three-party registered trust”, the Defendant is obligated to pay the purchase price to the Plaintiff even if the Plaintiff did not dispose of each of the instant lands without the Plaintiff’s consent, pursuant to the implied delegation agreement that transfers the instant land to the Plaintiff. Nevertheless, the Defendant committed a tort to sell each of the instant lands to D without the Plaintiff’s consent, in violation of such title trust agreement or delegation agreement.

B) The Defendant disposed of each of the instant lands, thereby making it impossible for the title truster to exercise the Plaintiff’s right to claim ownership transfer registration against the seller, and the Defendant’s act constitutes tort against the third party’s claim infringement.

C) Although the Defendant was obligated to dispose of each of the instant land at a reasonable price and pay the purchase price to the Plaintiff, a truster, sold at a price significantly lower than the market price, which constitutes a tort in violation of the principle of trust and good faith.

D) Therefore, the Defendant is obligated to pay the Plaintiff the purchase price of KRW 420 million (=the purchase price of KRW 1.4 billion - the purchase price of KRW 1.4 billion - the collateral security liability of each of the instant lands KRW 980 million).

2) Claim for return of unjust enrichment

The Defendant sold each of the lands of this case and obtained profits from KRW 420 million without any legal cause. The Plaintiff suffered losses from losing the right to claim ownership transfer registration of each of the lands of this case, and thus, the Defendant is obligated to pay KRW 420 million to the Plaintiff as a return of unjust enrichment.

B. Defendant’s assertion

1) Unless a fiduciary relationship with protection is recognized between a title truster and a title trustee, the Defendant’s disposal of each of the instant land does not constitute tort.

2) The Defendant sold each of the instant land and did not gain any profit since it did not acquire any profit from the purchase price of KRW 420 million. Therefore, the unjust profit is not constituted.

3) Even if the Plaintiff’s claim for the return of unjust enrichment against the Defendant exists, the Defendant shall offset the Plaintiff’s claim against the amount of KRW 150,00,79,797 (i.e., acquisition tax of KRW 25,780,00 + interest of collateral security obligation of KRW 124,229,797) and ② from November 16, 2010 to August 14, 2012 by the Plaintiff’s Dong-B and the Plaintiff’s account practically operated by the Plaintiff, and the amount of KRW 254,40,200 loaned to the Plaintiff through the Plaintiff’s account from November 25, 201 to April 12, 2011.

3. Determination as to the cause of action

A. The relationship between the parties (=three-party registered title trust)

1) In full view of Gap evidence Nos. 1, 2, 14, 21, 23, 24, Eul evidence Nos. 16 through 18, 20, and 21, and the purport of the entire pleadings as to the testimony of the witness F of the first instance trial, the following facts may be acknowledged.

A) On February 15, 2009, the Plaintiff entered into a joint business agreement with G representing C on behalf of F and each of the instant lands (hereinafter referred to as “joint business agreement”). From around 4,700 of the instant lands, the agreement entered into a joint business agreement with F and C to contribute KRW 300 million for the remainder after deducting KRW 600 million from KRW 1.2 billion of the purchase price of each of the instant lands at approximately 3,000 to KRW 3,200,000, the remainder after deducting KRW 600,000 from KRW 1.2 billion of the purchase price of each of the instant lands. If a joint business entity is incorporated, C and C completed the registration of ownership transfer of each of the instant lands.

B) The Plaintiff entered into a contract to purchase KRW 1/200 of KRW 300,00 of KRW 600 out of each land of the instant case on behalf of F. The Plaintiff paid KRW 350 million out of KRW 600,000, in promissory notes, and the remainder KRW 300,000,000, in total amount of KRW 300,000,000,000 for KRW 300,000,000,000 for each land of the instant case, to succeed to KRW 30,000,000 out of the total amount of KRW 30,00,000 for KRW 20 and KRW 150,000 for KRW 20,000 for each of the instant land. The Plaintiff paid to G the endorsement of KRW 20,000,000 for KRW 30,000.

C) On March 26, 2009, according to the instant joint business agreement, the H Farming Partnership Corporation (hereinafter “instant agricultural partnership”) was established on March 26, 2009, and the representative director, director F, director G, etc. were appointed respectively.

D) On June 26, 2009, G returned to the Plaintiff a promissory note with a face value of KRW 150 million, as the ownership of each of the instant land was not transferred to the instant farming association corporation. Moreover, G prepared a written confirmation that the Plaintiff invested KRW 73,394,448 to the Plaintiff on the same day.

E) On November 24, 2010, the Plaintiff completed the registration of provisional disposition with regard to each of the instant lands subject to a decision of provisional disposition prohibiting the disposal of each of the instant lands as the preserved right (No. 2010Kahap394, Jeju District Court).

f) On June 27, 2011, the Plaintiff between C and C, while the Plaintiff and C each of the instant cases

The letter of confirmation was prepared to the effect that "The sales contract shall be prepared to purchase the land amounting to KRW 1.22 billion on condition of acquiring the price of KRW 980 million." After that, G was dismissed from the director of the instant farming association on October 27, 201, and E was appointed as the plaintiff's partner on the same day.

2) In light of the contents of the instant joint project agreement between the Plaintiff and C, the progress of the execution of the contract, the process and contents of the conclusion of the sales contract on each of the instant land for the progress of the joint project, the background of the registration of transfer of ownership in the name of the Defendant on each of the instant land, the relationship between the Plaintiff and the Defendant concerning the sale and purchase of each of the instant land, and the developments and contents of the confirmation form concerning each of the instant land, including the Plaintiff, C, and the Defendant’s relationship, etc., the Plaintiff agreed upon the purchase of each of the instant land from C and the registration form under the name of the Defendant, and completed the registration form transfer of ownership on each of the instant land in accordance with the agreement. Thus, it should be deemed that the so-called three-party registered title trust was completed

B. Determination as to claim for damages

1) Determination on the assertion of title trust or violation of delegation agreements

The reasoning for this Court's explanation is that "the judgment of the court of first instance" is "the judgment of the court of first instance."

Judgment as to the primary argument, “(1) Violation of the delegation agreement” portion(3) between 21 et al.

18) Since it is the same as the statement, it shall be quoted in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2) Determination as to the assertion of claim infringement

The court's explanation on this part is the same as the statement of "(2) claim for infringement of claims by a third party" (Article 420 of the Civil Procedure Act) of "A.T.T.T.T.T.T.T.T.T. judgment" (Article 420 of the Civil Procedure Act). Thus, the court's explanation on this part is acceptable in accordance with the main sentence of Article 420 of the Civil Procedure Act.

3) Determination on the assertion of violation of the principle of trust and good faith

As seen earlier, it cannot be deemed that the Plaintiff and the Defendant are in a new relationship worth protecting the Defendant, or that the Defendant is obligated to dispose of each of the instant land at a reasonable price and pay the purchase price to the Plaintiff. In addition, it is not sufficient to recognize that the Defendant sold the instant land at a price significantly lower than the market price, and there is no evidence to acknowledge otherwise.

C. Determination on the claim for return of unjust enrichment

1) In the so-called three-party registered title trust, where the title trustee arbitrarily disposes of the trusted real estate, or the registration of transfer is completed in the name of a third party acquisitor due to compulsory expropriation, consultation on public land acquisition, etc. after the grace period under the Act on the Registration of Real Estate under Actual Titleholder’s Name has expired, barring any special circumstance, the third acquisitor acquires the ownership effectively, and thus, the seller’s obligation to transfer ownership to the title truster is impossible. As a result, the title truster would lose the seller’s right to acquire the ownership of the trusted real estate. On the other hand, the title trustee would incur loss of the right to acquire the ownership of the trusted real estate, whereas the title trustee is obliged to return the profits therefrom to the title truster as unjust enrichment (see, e.g., Supreme Court Decision 2009Da49193, 49209, Sept. 8

2) Therefore, in light of the following facts and circumstances, as to whether the Defendant obtained profits from the purchase of the purchase price of each of the instant land in this case, the following facts and circumstances are comprehensively taken into account: (a) the aforementioned evidence and the statement in Eul’s 2, 27 through 29, 32, 34, and 35; (b) the witness I’s testimony in this court; (c) the Nonghyup Bank (the Nonghyup Bank (the date August 10, 2018 and September 4, 2018) of this court; (d) the National Bank, Jeju National Bank, Jeju National Agricultural Cooperatives; (e) the Honam Saemaul Bank; (e) the Jeju Saemaul Bank; (e) the Jeju Saemaul Bank; (e) the Jeju Agricultural Cooperatives; (f) the Jeju Agricultural Cooperatives; (f) the Jeju Agricultural Cooperatives; (f) the Jeju Agricultural Cooperatives; and (f) the seller’s profits from each of the instant land at KRW 1.4 billion; and (f) the seller’s profits from each of the instant land at least KRW 8.900 billion.

(A) From October 201 to November 201, 2013, the Defendant: (a) borne interest of KRW 400 to KRW 500,000 per month on each of the instant lands; (b) entrusted the J with the sale of the instant lands on the condition that only the collateral security obligations of each of the instant lands be exempted; (c) around December 2013, 201, the J was linked to L/D women through I, K, etc. at the end of physical coloring the buyer.

(B) Since L was planned to develop each land of this case through a joint investment with M&A, an investor, and a joint investment, L made a proposal to secure more investments from investors, first, to raise a certain amount of the purchase price and KRW 1.4 billion to J side, and the Defendant and L made a sales contract with the purchaser to acquire the collateral security obligation of KRW 980 million.

(C) Accordingly, L receives KRW 500 million from investors. Of them, L was withdrawn as a check, the amount of KRW 41 million was paid as capital gains tax, and some of them was paid as a certified judicial scrivener’s fee and interest on collateral collateral, and the remainder was used by J, I, K, N, etc. who participated in the brokerage of a sales contract with L Women.

3) Meanwhile, the Defendant’s sale of each of the instant lands on the premise that the Plaintiff’s damages to the Plaintiff amount to KRW 420 million, and that the Plaintiff’s damages to KRW 420 million, the market price of each of the instant lands reaches KRW 420 million, after deducting KRW 980 million from the sale price of each of the instant lands and the amount of KRW 420 million. It is insufficient to acknowledge the Plaintiff’s assertion of the evidence No. 25 and the fact-finding results on April 12, 2019 against the Nonghyup Bank of this Court. There is no other evidence to acknowledge otherwise (the Plaintiff asserted that the amount equivalent to the purchase price at the time of purchase from each of the instant lands after the closing of the argument in this case or the amount equivalent to the expenses invested in the development of each of the instant lands after that of the instant lands was unjust enrichment. However, as seen earlier, there is no room for the Plaintiff to assert the development costs as unjust enrichment, not the purchase price of real estate, and there is no need for objective evidence and resumption of development costs.

4. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit. Since the part against the defendant among the judgment of the court of first instance against the defendant is unfair with a different conclusion, the defendant's appeal is accepted, and the plaintiff's claim as to the above cancellation portion is dismissed, and the plaintiff's appeal is dismissed as it is without merit. It is so decided