Whether a title truster in the forest may exercise the right to claim cancellation registration of the forest land by the trustee without cancelling a title trust (affirmative)

Since the title truster of forest land has a claim under the trust contract against the trustee, in order to preserve the claim without cancelling the title trust, the trustee can exercise in subrogation the right to claim the procedure for cancelling the registration of cancellation of ownership transfer due to the invalidation of the reason for the forest land.

Article 404 of the Civil Act

Supreme Court Decision 65Da1669 Delivered on November 23, 1965

Attorney Kim Tae-tae, et al., Counsel for the plaintiff-appellee-appellant

Jeonju District Court Decision 200Hun-Ba45 delivered on August 1, 200

Gwangju High Court Decision 87Na161 delivered on March 16, 1988

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal No. 1 are examined.

According to the reasoning of the judgment below, the court below acknowledged the fact that the registration of ownership transfer was made in the name of Defendant 1, as in the first instance court, as in the original sale of the forest land, and the registration of ownership transfer was made in the name of Defendant 2 through Defendant 2 in the first instance court. The plaintiff's assertion that the forest of this case was held in trust with the deceased non-party 3 and two owners, who is the grandchildren of the above non-party 3, forged the guarantee under the Act on Special Measures for the Registration of Forest Ownership Transfer, and completed the registration of ownership transfer in the name of this case under the above non-party 2, but completed the registration of ownership transfer in the name of Defendant through the above non-party 2. Thus, the registration of preservation in the name of the above non-party 1 was null and void. Thus, the plaintiff's assertion that the above registration of ownership transfer in the name of Defendant 3 was revoked in the name of the above non-party 4, who is the heir of the above non-party 3, and thus, the plaintiff's claim for cancellation of the forest of this case cannot be viewed.

However, as alleged by the plaintiff, if the forest land is owned by the plaintiff, and if the plaintiff is a trust title trust with the deceased non-party 3 and two persons, the plaintiff is a trust administrator under the title trust contract with respect to the forest land, and as such, the trustee has a claim under the trust contract with respect to the above trustee, so in order to preserve the claim, the trustee can exercise the right to claim for the cancellation of the registration of ownership transfer due to the invalidation of the cause for the forest land (see Supreme Court Decision 65Da1669, Nov. 23, 1965)

The decision of the court below to the purport that the plaintiff cannot seek cancellation of the registration without cancelling the title trust at the time of original sale is erroneous in the misapprehension of legal principles as to the effect of termination of the title trust contract.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ju (Presiding Justice)