Plaintiff (Law Firm Damar, Attorney Hy-chul, Counsel for plaintiff-appellant)

Defendant (Attorney Kim-tae, Counsel for the defendant-appellant)

May 14, 2008

Suwon District Court Decision 2006Kadan10636 decided May 31, 2007, 29326 (Counterclaim)

1. Revocation of a judgment of the first instance;

2. The Plaintiff (Counterclaim Defendant) performed the procedure for ownership transfer registration for 2/13 shares of the real estate listed in paragraph (1) of the attached Table No. 1 to the Defendant (Counterclaim Plaintiff) and the procedure for ownership transfer registration for 2/13 shares of the real estate listed in paragraph (2) of the same Table on the ground of unjust enrichment return.

3. The plaintiff (Counterclaim defendant)'s main claim is dismissed.

4. The total costs of the lawsuit shall be borne by the Plaintiff (Counterclaim Defendant).

1. Purport of claim

(a) Main claim;

The Defendant (Counterclaim Plaintiff; hereinafter referred to as the “Defendant”) shall deliver to the Plaintiff (Counterclaim Defendant; hereinafter referred to as the “Plaintiff”) one story of 77.37 square meters among the real estate listed in attached Table 1.

(b) Counterclaim;

The plaintiff implements the procedure for ownership transfer registration for 2/13 shares out of the real estate listed in the attached list No. 1 to the defendant, and implements the procedure for ownership transfer registration for 2/13 shares out of the real estate listed in the attached list No. 2 to return unjust enrichment (the defendant amended the claim for counterclaim in the appellate court).

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

The fact that on July 14, 197, the registration of ownership transfer has been made in the name of the plaintiff on the real estate listed in paragraph (2) of the attached Table No. 2 (hereinafter “instant site”), and on the real estate listed in paragraph (1) of the attached Table No. 1 (hereinafter “instant house”), the registration of ownership transfer was made in the name of Nonparty 2 on September 11, 1985, and on April 15, 2005, the registration of ownership transfer was made in the name of the plaintiff on April 15, 2005, and the fact that the defendant occupied the first floor among the instant housing does not conflict

2. The parties' assertion

As the principal lawsuit, the Plaintiff seeks to deliver the part of possession to the Defendant based on the ownership of the instant housing.

As to this, the Defendant asserted that, as the deceased non-party 1 was in title trust to the Plaintiff, she was held by the deceased non-party 2, who was the South-North Korea, each of the instant housing and the site, the Plaintiff is not the real owner of the instant housing and the site. As a counterclaim, the Plaintiff seeks to implement the procedure for the registration of ownership transfer as to shares in inheritance 2/13 of

3. Determination

(a) Facts of recognition;

The following facts may be acknowledged in full view of each statement or part of Eul evidence 1 to 19 (including each number, excluding the part which is not believed in Eul evidence 12-4, 5, and 7) and each statement of non-party 3, 4, and non-party 5 of the first instance trial witness of the court of first instance, and the purport of the whole pleadings:

(1) Nonparty 1 married with Nonparty 5 around 1945 and served as police officers from around 1949 to 1976, and thereafter as the head of Dong in the jurisdiction of Sungnam-si from around 1987.

(2) On October 18, 1976, Nonparty 1 purchased the land (number 2 omitted) and the building not registered on that land (number 2 omitted) located in Sung-dong, Tae-dong, Tae-nam-si (hereinafter “land number 2 omitted”). Nonparty 5 purchased the instant site and the building not registered on that ground from Nonparty 6 around July 14, 1977, for the aggregate of the incomes accrued while conducting funeral services, Nonparty 5 purchased from Nonparty 6 the instant building and the building not registered on that ground from his own name (number 2 omitted) and completed the registration of ownership transfer of the instant building under the Plaintiff’s name, which was within 2 years of marriage with Nonparty 2, who was married with Nonparty 2.

(3) On February 25, 1985, Nonparty 1 and Nonparty 4 carried out the construction of the instant house by removing the unregistered building on the instant site and building the instant house. On June 4, 1985, upon the construction of the instant house, Nonparty 1 had registered the preservation of ownership in the name of Nonparty 2 in the name of Nonparty 2.

(4) Nonparty 1, along with his wife Nonparty 5, resided in the first floor of the instant house with his wife Nonparty 5, and the second floor was leased to others, and the Defendant, who was 3 South Korea around 1990, was married and resided in the said first floor together with the Defendant’s family.

(5) Since then, Nonparty 1’s husband and wife moved to a house above (number 2 omitted) around 1993, and around that time, both the Plaintiff’s husband and wife and their children move to the second floor of the instant house and up to now the Plaintiff’s husband and wife were living in the first floor of the instant house, and the Plaintiff’s husband and wife were living in the second floor.

(6) Nonparty 1 died on April 18, 199. At the time of death, Nonparty 5 and five children were the inheritor at the time of death, and the Defendant’s inheritance shares are 2/13.

According to the above facts of recognition, the deceased non-party 1 is deemed to have held title trust with each plaintiff and non-party 2.

B. The plaintiff's assertion

(1) Acquisition by evidence

The plaintiff asserts that even if the deceased held a title trust on the building site and the house of this case, the deceased gave a donation to the plaintiff and the non-party 2 before his birth, but there is no evidence to acknowledge this, the plaintiff's above assertion is without merit.

(2) Acquisition due to completion of the statute of limitations

The plaintiff asserted that the plaintiff and the non-party 2 occupied the ownership title of the building site and the house in this case for not less than 10 years or 20 years, and thus, they acquired it due to the completion of the prescriptive acquisition. However, in light of the circumstances of the purchase of the building site in this case and the construction of the house in this case, it cannot be deemed that the plaintiff and the non-party 2 occupied it with their intention to own. Thus, the plaintiff's above assertion is without merit without need

(3) Acquisition by agreement or division of inherited property

The plaintiff asserted that the plaintiff and the non-party 2 acquired the building site and housing of this case, which are the inherited property of the deceased through the division of inherited property consultation, but there is no evidence to acknowledge that there was an agreement among the co-inheritors of the deceased on division of inherited property, such as the plaintiff's assertion.

(4) The exclusion period of the right to recover inheritance; and

The plaintiff asserts that since the plaintiff's claim for the above transfer of ownership against the plaintiff was based on inheritance, since the plaintiff's claim for the above transfer of ownership belongs to himself/herself, it constitutes a claim for inheritance recovery under Article 999 of the Civil Act and the above claim for inheritance recovery expires after the lapse of three-year limitation period from the deceased's death day on which he/she was aware of the infringement of inheritance rights.

The "date on which he knows the infringement of the right to inheritance" under Article 999 (2) of the Civil Act, which is the starting point of the exclusion period of the right to claim inheritance recovery, refers to the time he knows that he is the true inheritor and knows the fact that he is excluded from his inheritance. Thus, in individual cases, he should reasonably recognize it by taking into account various objective circumstances and circumstances practically possible. According to the purport of the whole pleadings, the plaintiff and the non-party 2, around February 2006, did not assert that the plaintiff and the non-party 2 did not assert that the plaintiff and the non-party 2 were the sole ownership of the plaintiff and the non-party 2, not inherited property, before filing the lawsuit of this case. Thus, the defendant was aware of the fact that the right to inheritance by one of the co-inheritors was infringed until before the lawsuit of this case was brought.

(5) Non-recognition of a claim for return of unjust enrichment in a third party title trust

As a counterclaim, the Defendant asserts that, with respect to a claim for the registration of ownership transfer for shares 2/13, which correspond to the shares in Defendant’s inheritance on the premise that the Plaintiff made unjust enrichment, the Plaintiff asserts that, as a title trust for the instant site is not a contractual title trust, but a third party title trust, the registration under the name of the actual right holder is null and void under the law on the registration under the name of the actual right holder, and therefore, the Plaintiff

As seen earlier, in light of the developments leading up to the purchase of the instant site, title trust as to the instant site is deemed to be “title trust between the deceased and the third party registered in the name of the plaintiff.” However, if the defendant cancelled the registration of title transfer in the name of the plaintiff on behalf of the seller, and then restores the shares in inheritance among them under the name of the defendant, not only the procedure is complicated, but also the procedure is complicated, but also the seller who sells the instant site and actually did not have any interest as to the instant site in around 1977, in fact, sells the instant site and raises a lawsuit against the seller. Therefore, the legal relationship between the defendant, the heir of the title truster, and the plaintiff, the title trustee, should be resolved clearly. However, the title trust agreement is based on the title trust agreement, and since the said real estate title trust agreement was null and void pursuant to Article 4 of the Act on the Registration of Real Estate under Actual Right holder’s Name, the plaintiff holds the title of registration in the instant site without any legal ground, and the defendant is not entitled to file a return of the Plaintiff’s directly held the name.

C. Sub-decision

Therefore, with respect to the instant site, the Plaintiff is obligated to implement the registration procedure for transfer of ownership based on unjust enrichment on the share 2/13, which is the heir of the title truster, as the title trustee.

In addition, the non-party 2, the title trustee, bears the duty to transfer the title of the instant house to the co-inheritors, who are the title truster, in proportion to his share of inheritance, and continues to reside in the instant house even after the registration of ownership transfer was made on April 15, 2005 on the ground that the Plaintiff was donated to the wife, and there is no evidence to deem that there was no special circumstance to deem that the non-party 2 at the time, at the time, there was any special circumstance to donate the instant house to the Plaintiff, the donation act is null and void as an anti-social order act committed by the non-party 2 by actively participating in the act of false representation or the act of breach of trust against the above co-inheritors. Accordingly, the Plaintiff is liable to implement the ownership transfer registration procedure for the share

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the defendant's claim of this case is justified, and the judgment of the court of first instance is unfair in conclusion. Thus, the judgment of the court of first instance is revoked, the plaintiff is ordered to implement the above procedure for the registration of transfer of ownership, and the plaintiff's claim of this case is dismissed. It is so decided as per Disposition.

[Attachment List omitted]

Judge final (Presiding Judge) Professor Jong-nam, Kim Jong-chul