[1] Where a title trustee fails to make a real name registration within the grace period under Article 11 of the Act on the Registration of Real Estate under Actual Titleholder’s Name in bilateral registration title trust, whether the title trustee may assert ownership or exercise a real right claim based on ownership in relation to a third party (negative)

[2] Whether a title truster of a bilaterally registered title trust which is null and void under the Act on the Registration of Real Estate under Actual Titleholder’s Name may seek implementation of the procedure for registration of ownership transfer based on the return of unjust enrichment against the title trustee (negative)

[1] Articles 4, 11, and 12 of the Act on the Registration of Real Estate under Actual Titleholder’s Name; Article 214 of the Civil Act / [2] Article 4 of the Act on the Registration of Real Estate under Actual Titleholder’s Name; Articles 186 and 741 of the Civil Act

[1] Supreme Court Decision 2006Da18402, 18419 Decided August 24, 2006 / [2] Supreme Court Decision 2002Da35157 decided September 6, 2002 (Gong2002Ha, 2417)

[Judgment of the court below]

Defendant 1 and one other (Law Firm Gyeong, Attorney Yang Dong-dong, Counsel for the defendant-appellant)

Jeju District Court Decision 2011Na1859 decided September 19, 2012

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. According to Articles 4, 11, and 12 of the Act on the Registration of Real Estate under Actual Titleholder’s Name (Act No. 494), which was promulgated by Act No. 4944 of March 30, 1995 and enforced July 1, 1995, the title truster, who had had a real right to real estate registered under a title trust agreement prior to the enforcement of the Real Estate Real Name Act (Act No. 4944), registered or had a title trustee registered the real right under the title trust agreement in the name of the title trustee. If the title truster did not dispose of the real right within one year from the enforcement date of the Real Estate Real Name Act (Act No. 4944), the title trust agreement becomes null and void. Accordingly, in cases where the title truster transfers the title of real estate under a title trust agreement between him/her and the title trustee, the title truster and the title truster’s right to claim ownership transfer should not be revoked after the expiration of the title trust agreement.

Furthermore, in the case of bilateral registered title trust, the title trust agreement and its registration are null and void under the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”), and so, the ownership is not transferred from the beginning despite the registration of ownership transfer under the name of the title trustee with respect to the target real estate, so long as the title truster who acquired the ownership of the real estate still holds the ownership thereof, it cannot be said that the title truster suffers any “damage” or the title trustee gains any profit due to the registration of ownership transfer under the name of the title trustee with respect to the establishment of unjust enrichment. Ultimately, in the case of bilateral registered title trust, the title truster may seek against the title trustee the cancellation of the ownership transfer registration under the name of the title trustee or seek the implementation of the ownership transfer registration procedure due to the restoration of the real name (see, e.g., Supreme Court Decision 2002Da35157, Sept. 6, 2002).

2. The lower court, on the grounds indicated in its reasoning, determined as follows. The title trust agreement concluded between Nonparty 1 and Nonparty 2 prior to the enforcement of the Real Estate Real Name Act (Act No. 4944) regarding the instant land owned by Nonparty 1 and the title trustee’s registration of title transfer under the title trust agreement concluded between Nonparty 1 and Nonparty 2, and the title trustee’s registration of title transfer under the title trustee’s name transfer, became null and void after the lapse of the grace period for the real name registration under the Real Estate Real Name Act (Act No. 4944) upon the death of Nonparty 1. Accordingly, the ownership was returned to the deceased Nonparty 1’s heir, his spouse, and children. In addition, under the Real Estate Real Name Act, the title trust agreement concluded between the Plaintiff and Defendant 1, the Plaintiff, and the Plaintiff’s spouse, were null and void, and thus, the ownership transfer registration of the instant land is deemed null and void.

Furthermore, on its premise, the lower court dismissed each of the following grounds: (i) Defendant 1, the title trustee under the title trust agreement 2 regarding the instant land: (ii) the primary claim against Defendant 1, the title trustee under the title trust agreement 2, claiming the implementation of the procedure for the registration of ownership transfer due to the restoration of real name by subrogation of Nonparty 2, the title trustee under the title trust agreement 1; (iii) the first preliminary claim seeking the implementation of the procedure for the registration of ownership transfer due to the termination of the title trust agreement 2; and (ii) the second preliminary claim seeking the implementation of the procedure for the registration of ownership transfer due to unjust enrichment; and (ii) Defendant 2, the title holder of the provisional registration of this case and the registration of ownership transfer due to the provisional registration of this case made after the transfer of ownership under Defendant 1, who is the title holder of the provisional registration of this case and the registration of ownership transfer

3. Examining the records in light of the above legal principles, we affirm the judgment of the court below as just. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to title trust and unjust enrichment.

4. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)