In a case where a mutual title trust relationship with respect to a land has ceased to exist because a mutual title trust relationship with respect to the land has ceased to exist because a mutual title trust registration for the land was completed after a mutual title trust registration for the land was divided by a sectional ownership (negative)

Where a co-ownership registration has been made through a mutual title trust while ownership of each specific part of the land is divided, if the land is divided, the mutual title trust relationship remains as it remains, since the co-ownership registration of each previous land is transcribed, and even if the registration of a divided land is cancelled as a duplicate registration, the mutual title trust relationship with respect to the remaining divided land is not naturally extinguished.

Articles 186 [title trust] and 262 of the Civil Act

Supreme Court Decision 79Da741 delivered on June 26, 1979 (Gong1979, 12043) (Gong1973 delivered on November 23, 1990) (Gong1991, 169) 91Da27952 delivered on May 26, 192 (Gong192, 1990)

[Defendant-Appellant] Plaintiff 1 and 2 others, Counsel for defendant-appellant-appellant

Defendant 1 and six defendants et al., Counsel for the defendant-appellee

Seoul High Court Decision 91Na14811, 91Na14828 (Counterclaim) decided August 21, 1992

The judgment below is reversed;

The case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. On the second ground for appeal

According to the records, it is evident that the defendant (Counterclaim plaintiff, hereinafter only the defendant) asserted that the transfer registration of shares by the plaintiff (Counterclaim defendant, hereinafter only the plaintiff) was null and void on July 21, 1992 in the application for change of the purpose of the counterclaim and the cause of the claim stated on July 21, 1992, which was stated on the 12th day of pleading, since the transfer registration of shares by the plaintiff (Counterclaim defendant, hereinafter only the plaintiff) was registered for transfer of shares of the deceased non-party

The argument is without merit.

2. On the first ground for appeal

A. The facts duly established by the lower judgment are as follows.

(1) On August 29, 1936, the land was originally found in the name of Nonparty 1 (the 1 and 2 judgment of the court of first and second instances seems to be a clerical error in the Constitution), and on the same day, the registration of preservation of ownership of Nonparty 1 was made on the same day. On April 1, 1940, the above ( Address 2 omitted) was again divided into 25 parts of the forest ( Address 2 omitted) and 5 parts of the forest ( Address 3 omitted), and the registration of ownership transfer was made in Nonparty 2 on May 16, 1941 with respect to each two parcels.

(2) Meanwhile, the remainder, other than the portion for which the preservation registration was made in the above non-party 1 and the registration of transfer was made in the above non-party 2, was owned by the deceased non-party 3 on November 3, 1957, and the registration was made on November 3, 1957, and the registration was made on November 4, 1957, with respect to the non-party 4 as to the non-party 1/2 shares of the forest land ( Address 1 omitted), and the registration was made on November 4, 1957, and the registration was made on November 4, 1957.

(3) On February 12, 1981, Nonparty 2 won a lawsuit seeking cancellation against Nonparty 3 and the above Nonparty 4, etc., with the knowledge that the registration for preservation was made twice on the above ( Address 2 omitted) and the part ( Address 2 omitted) that the above Nonparty 4 purchased with the specific part of the above Nonparty 2, and the registration for the forest ( Address 4 omitted) and ( Address 3 omitted) were cancelled on the ground of overlapping registration, and the registration for the forest was cancelled on the register for the forest ( Address 4 omitted), which is the part that the above Nonparty 4 purchased with the specific part of the above Nonparty 4, and the ownership of Nonparty 4 and the heir of Nonparty 3 became the same.

(4) On January 20, 1982, the above non-party 4 died, and completed inheritance registration as to shares in the above non-party 4's 1/2 on June 15, 1987 ( Address 4 omitted). Since the above non-party 3 died on December 12, 1969, the non-party 5, non-party 6, non-party 7, non-party 8, non-party 9, non-party 10, and non-party 11 succeeded to the property, and registered the inheritance registration as to shares in the above non-party 3's 1/2 on August 4, 1987, and registered the inheritance registration as to shares in the non-party 7's name on the same day to the plaintiff 1 on the ground of the sale and purchase of shares in the non-party 2's name 9,416.7/209, 36/297, 2986/197.

B. The court below, based on the above facts, held that the registration of transfer of ownership in the above non-party 4's name on the part of the above non-party 1/2 shares of the above ( Address 4 omitted) forest as the land for the purpose of the division, and held that the registration of preservation of the whole ( Address 1 omitted) forest ( Address 2 omitted) and ( Address 3 omitted) forest as the land for the purpose of the division, and held that the registration of the above non-party 4 and the above non-party 3's name is cancelled in relation to the above ( Address 2 omitted) forest land and ( Address 3 omitted) forest land, on the ground that the registration of the above non-party 3's name remaining in the above ( Address 4 omitted) forest land is only the registration of the land for the purpose of the division without the purpose of the registration. Accordingly, since the transfer registration of shares in the plaintiffs' name is based on the sale as the object of non-party 3's right to share without permission, the plaintiffs' claim for the cancellation of the plaintiffs' share transfer registration procedure was dismissed.

C. However, in a case where a mutual title trust registration has been completed by dividing a specific part of each land and holding it in a mutual title trust, if the land is divided, the mutual title trust relationship remains as it remains, since the joint registration of each divided land is transcribed, and even if a mutual title trust relationship with respect to a divided land has ceased to exist by cancelling the registration as a duplicate registration (see Supreme Court Decision 91Da27952 delivered on May 26, 192).

Nevertheless, the court below determined that the registration of share in the above non-party 3, which was transferred after the division on the premise that the above title trust relationship had ceased to exist in a different view, exists only with the registration payment without the target land. It erred by misapprehending the legal principles on the cancellation of mutual title trust relationship and the transfer of share in the sectionally owned co-ownership relationship.

The argument pointed out this point is with merit.

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

Justices Kim Yong-sung (Presiding Justice)