[1] The meaning of "litigation as to real right to real estate" under Article 11 (4) of the Act on the Registration of Real Estate under Actual Titleholder's Name

[2] In a case where a trustee of a title trust agreement dies and files a lawsuit against the co-inheritors as to the real right to real estate within the grace period under Article 11 (1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, which omitted part of the co-inheritors by mistake, and thereafter files an additional lawsuit against the omitted co-inheritors, whether the effect of the existing title trust agreement is maintained during the continuation of the additional lawsuit (affirmative with qualification)

[1] "Litigation as to the real right to real estate" under Article 11 (4) of the Act on the Registration of Real Estate under Actual Titleholder's Name is sufficient if the title truster asserts that he/she is a party to the pertinent real estate and is an actual right holder and is confirmed officially.

[2] Even though some of the co-inheritors who succeeded to the status of the trustee of a real estate title trust agreement omitted from the other party to the lawsuit, so long as the purport of the lawsuit is subject to the whole title trust relation, "litigation as to the real estate right to the omitted co-inheritors" shall be deemed to have been brought. In the first lawsuit, even though the title truster won all of the inheritance shares, if the second lawsuit was brought again against the omitted inheritor without making the real name registration due to the wind whose inheritance shares are erroneously indicated, and if the second lawsuit was brought again against the omitted inheritor within a considerable period after the confirmation of the first lawsuit, and thus the lawsuit as to the pertinent real estate is judged to continue, it is reasonable to view that the above lawsuit falls under the "existing litigation as to the real estate right to the real estate under Article 11 (4) of the Act on the Registration of Real Estate under Actual Titleholder's Name," and as long as the lawsuit was brought without omission of part of the co-inheritors's title trust relation during the grace period, it is not effective.

[1] Article 11(4) of the Act on the Registration of Real Estate under Actual Titleholder’s Name / [2] Articles 11(1) and (4), and 12(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name

[1] [2] Supreme Court Decision 96Da55846 delivered on April 8, 1997 (Gong1997Sang, 1395) Supreme Court Decision 98Da12874 delivered on June 26, 1998 (Gong1998Ha, 1992)

Seoul High Court Decision 201Na14486 decided May 1, 2012

Defendant

Daejeon High Court Decision 97Na8203 delivered on June 17, 1998

The judgment of the court below is reversed and the case is remanded to Daejeon High Court.

We examine the grounds of appeal.

Article 11 (1) of the Registration of Real Estate under Actual Name Act (hereinafter referred to as the "Real Estate Actual Name Act") provides that the term of suspension for the existing title truster at the time of the enforcement of the above Act shall be one year starting from the enforcement date of the Act, and that the actual name registration shall be made within the said period. Article 11 (4) of the same Act provides that "If litigation on the real right to real estate is instituted to a court before the enforcement date of the Act or during the grace period, the real name registration or the sale of the real estate shall be made within one year from the final and conclusive judgment (including cases having the same effect as this)," which permits the extension of the grace period for real name conversion to the existing real estate under Article 12 (1) and Article 4 (1) of the same Act, and thus, if the title truster fails to take measures for real name registration or sale of the real estate within the period prescribed in Article 11, the title truster's existing title trust agreement shall be deemed null and void after the enforcement date of the Act."

According to the facts duly admitted by the court below, although the defendant was not the other party in the above Daejeon District Court 95Gahap3842, the lawsuit was filed against all co-inheritors who succeeded to the status of the above non-party on the premise that the title trust relation between the deceased non-party and the plaintiff was established with respect to the land and building of this case, so the lawsuit for the registration of transfer of ownership was filed on the ground of the title trust termination against all co-inheritors who succeeded to the status of the above non-party on the premise that the title trust relation was established between the deceased non-party and the plaintiff, so even in relation to the defendant, the lawsuit for the registration of actual name shall be deemed to have already been filed, and as a result, the lawsuit of this case was filed again against the defendant, without going through the wind that the fact that the defendant, who was the non-party of the above co-inheritors, was omitted at the latest even though the plaintiff won all of the lawsuit, and as a result, it shall be deemed that the dispute over the land and building of this case continues to exist during the existing title trust agreement.

Nevertheless, the court below held that the existing title trust agreement is null and void in relation to the defendant, considering that the grace period under the Real Estate Real Name Act has already expired at the time of the filing of the lawsuit, and that the existing title trust agreement was null and void in relation to the defendant. There is an error of law regarding the grace period under the Real Estate Real Name Act and the validity of existing title trust agreement

Therefore, without examining the remaining grounds of appeal, 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

Justices Lee Jae-soo (Presiding Justice)