Plaintiff (Attorney Kim Chang-won et al., Counsel for the plaintiff-appellant)

Defendant 1 and two others (Attorney Lee Jae-chul, Counsel for the defendant-appellant)

November 8, 2012

Changwon District Court Decision 201Gahap1941 Decided April 13, 2012

1. The judgment of the first instance court shall be modified at the request of the plaintiff changed at the trial as follows:

A. Defendant 1 and 2 shall pay to each Plaintiff 11,428,571 won with 5% interest per annum from November 3, 1994 to February 7, 2013, and 20% interest per annum from the next day to the day of full payment.

B. The plaintiff's primary claim against the defendant 3 and the remaining conjunctive claim against the defendant 1 and 2 are all dismissed.

2. Of the total litigation cost, the part arising between the Plaintiff and Defendant 3 shall be borne by the Plaintiff, and the part arising between the Plaintiff, Defendant 1 and Defendant 2, respectively.

3. The above paragraph 1(a) may be provisionally executed.

The judgment of the first instance shall be revoked.

In the first place, Defendant 3 shall implement the registration procedure for ownership transfer on August 30, 1994 with respect to 3/7 shares of forest land of 24,006 square meters (hereinafter “the forest of this case”) in Haan-gun, Gyeongnam-gun (hereinafter omitted) to the Plaintiff.

Preliminaryly, from November 3, 1994 to July 12, 2012, Defendant 1, and 2 paid to the Plaintiff 111,428,572 won and the amount of money calculated by the rate of 20% per annum from the following day to the date of service of the application for modification of the purport of the claim and the cause of the claim from November 3, 1994 to the date of service of the application for modification of the cause of the claim, and from the next day to the date of full payment (the Plaintiff was jointly and severally liable to the Plaintiff for restoration from the first instance to the original state due to the cancellation of the contract, and the Plaintiff was jointly and severally liable to the Plaintiff for the payment of the amount of KRW 11,428,572 and the delay damages therefrom, and ② Defendant 3, on behalf of the obligee, made the execution of the procedure for the transfer registration of the ownership of the forest of this case to Defendant 1 and 2 as the preserved claim).

1. Facts of recognition;

A. The plaintiff's status

The plaintiff is the wife of the non-party 1 (the deceased) who died on June 19, 2009. Among the inheritors of the deceased, the remaining inheritors, excluding the plaintiff 2 and 3 and the co-Plaintiff 2 and 3 of the first instance court, give up inheritance, the plaintiff's share of inheritance is 3/7.

B. Progress of the instant sales contract

1) Defendant 3 purchased 4,00 square meters among the instant forest land, and Nonparty 2 jointly purchased 3,262 square meters among the instant forest land. At the time, Nonparty 2 was unable to register the ownership of the instant forest under its name because he did not reside in Gyeong-nam, Gyeong-gun, which is the location of the instant forest. As to the entire instant forest land, the registration of ownership transfer was made with the Changwon District Court No. 14062, Dec. 20, 1992 on the part of the instant forest as to the entirety of the instant forest by the Changwon District Court No. 14062.

2) On July 1, 1993, Defendant 3 sold to Defendant 2 the purchase price of KRW 155,000,000, his own possession of the instant forest, among the instant forest land, at KRW 155,000,000. At the time, Defendant 2 agreed not to raise an objection despite Defendant 2’s request for registration at the time of the following registration. Defendant 2 received full payment of KRW 15,00,000 from Defendant 2 around July 27, 1993.

3) Meanwhile, Nonparty 2 delegated Defendant 1, the husband of Defendant 2, with the authority to dispose of 3,230 square meters of the forest land of this case in relation to the repayment of the bill of exchange endorsed by himself to Defendant 1.

4) On April 14, 1994, Defendant 3 and Nonparty 2 prepared with Defendant 1 a power of delegation stating that “all rights to the forest of this case owned by Defendant 3 on the registry” (hereinafter the power of delegation in this case) and Defendant 3 as the owner of the forest of this case, and Nonparty 2 signed the said power of delegation as the owner of the forest of this case 3,280 square meters among the forest of this case and delivered it to Defendant 1.

5) On August 30, 1994, the Deceased purchased the forest of this case from Defendant 1 and 2 in KRW 430,000,000, and on October 15, 1994, the Deceased entered into a contract with an intermediate payment of KRW 160,000,000 on the same day, and an intermediate payment of KRW 170,000 on April 1, 1995 to pay each balance of KRW 170,00,000 (hereinafter “the instant contract”). The said contract was accompanied by a copy of the certificate of personal seal impression for delegation by Defendant 3, a copy of the copy of the register, a land cadastre, and a copy of the instant delegation of powers.

6) The Deceased paid Defendant 1 and 2 the down payment of KRW 100,000,000 on August 30, 1994; KRW 50,000,000, which is a part of the intermediate payment on September 9, 1994; and KRW 100,000,000, which is a part of the intermediate payment on October 4, 1994; and KRW 10,000,000, which is a part of the intermediate payment on November 2, 1994, respectively, died while he did not pay the remainder of KRW 170,00,000.

C. Provisional Disposition against the Deceased’s Disposal

On the other hand, the deceased filed an application for provisional injunction against the disposal of real estate with the right to claim the transfer registration of ownership based on the sales contract of this case as the Changwon District Court 2002Kadan10833 with respect to the forest land of this case as the preserved right. On August 2, 2002, the court accepted the deceased's application on August 2, 2002, and the registration was completed on August 5, 2002 as the Changwon District Court Hawon District Court Hawon Branch Office No. 12793.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 7, Eul evidence No. 1 (including each number), non-party 2's testimony and the purport of the whole pleadings

2. Judgment as to the main claim

A. The plaintiff's assertion

Of the forest land of this case, Defendant 2 purchased 4,00 square meters from Defendant 3, and the remainder was delegated to Defendant 1’s disposal authority by Nonparty 2. In addition, Defendant 3 and Nonparty 2 attached the power of attorney of this case to delegate all rights to the forest land of this case to Defendant 1. As such, Defendant 3, the first transferor, through the instant sales contract, agreed on interim omission registration to implement the procedures for ownership transfer registration to the deceased, the final transferee, immediately without going through Defendant 1 and 2.

Therefore, Defendant 3, the owner on the registry of the forest of this case, is obligated to perform the registration of ownership transfer as to 3/7 shares, the Plaintiff’s share in the forest of this case, among the forest of this case.

B. Determination

In the event that real estate was transferred before the transfer, the final transferee cannot directly request the first transferor to register the ownership of the forest of this case unless there is an agreement on the interim omission registration, and in order for the last transferee to exercise directly the right to claim the ownership transfer registration on the ground of the agreement on the interim omission registration in sequence, in addition to the agreement between the first transferor and the last transferee on the interim omission registration, there is an agreement on the omission of the intermediate registration between the first transferor and the last transferee (see Supreme Court Decision 95Da15575 delivered on August 22, 1995). Thus, in order for Defendant 1 and 2 to claim the ownership transfer registration on the forest of this case directly against Defendant 3, the first transferor, who is the final transferee purchased from Defendant 1 and 2, on the ground of the agreement on the interim omission registration, not only between Defendant 3 and Defendant 1 and Defendant 2, but also between Defendant 3 and the deceased.

Defendant 3, at the time of selling 4,00 square meters of the forest of this case to Defendant 2, entered into a special agreement with Defendant 2 without objection even if Defendant 2 requested another person to register the forest of this case after the next, and the fact that Defendant 3 and Nonparty 2 delegated the right to dispose of the forest of this case to Defendant 1, and the fact that Defendant 3 and Nonparty 2 prepared and delivered the power of attorney of this case to Defendant 1 is as follows: Provided, however, it cannot be deemed that Defendant 3, the first transferor, had an agreement to omit the intermediate registration to directly complete the registration of transfer of ownership to the deceased who is the last transferee, and it cannot be deemed that there was any consensus among the Plaintiff, the Defendants, and Nonparty 2, who are the parties to the contract of this case. Accordingly, this part of the Plaintiff’s assertion is without merit.

Furthermore, under the premise that the Plaintiff may seek the implementation of the procedure for the registration of ownership transfer concerning the forest of this case directly to Defendant 3, there is no reason for the Plaintiff to seek the implementation of the procedure for the registration of ownership transfer with respect to the forest of this case due to the payment and repayment of the remainder by

C. Sub-committee

Therefore, the plaintiff's primary claim against the defendant 3 cannot be accepted.

3. Judgment on the conjunctive claim

A. The plaintiff's assertion

The extinctive prescription of Defendant 2 and Nonparty 2’s right to claim for ownership transfer registration of the forest of this case against Defendant 3 has expired, and as a result, if Defendant 1 and Defendant 2 were unable to perform the procedure for ownership transfer registration of the forest of this case against the Plaintiff, the deceased’s heir, the deceased, due to the cause attributable to Defendant 1 and 2, the sales contract of this case was impossible. Thus, the sales contract of this case was lawfully rescinded by the deceased’s heir, including the Plaintiff, by delivery of the complaint of this case. Thus, Defendant 1 and 2 are obligated to refund to the Plaintiff the money equivalent to the Plaintiff’s share of inheritance and damages for delay.

B. Determination

1) Whether Defendant 1 and 2’s obligation to transfer ownership is impossible

A) The premise of determination as to whether Defendant 1 and Nonparty 2’s obligation to transfer ownership of the instant forest land to the Plaintiff was impossible, is whether the statute of limitations expires. The premise of determination is whether Defendant 2 and Nonparty 2’s right to claim for transfer of ownership of the instant forest land against Defendant 3.

B) First, as to whether Defendant 2’s right to claim for ownership transfer registration of 4,00 square meters out of the instant forest land against Defendant 3 has expired, the fact that Defendant 2 purchased 4,000 square meters out of the instant forest land from Defendant 3 on July 1, 1993 and paid all the purchase price around July 27, 1993 is recognized as above. As such, Defendant 2 could have exercised the right to claim ownership transfer registration of 4,00 square meters out of the instant forest land from July 27, 1993 to Defendant 3. Thus, from that point of time, ten years have passed since the expiration date of the extinctive prescription period of the right to claim ownership transfer registration, which is the right to claim ownership transfer registration, against Defendant 2, around July 27, 2003.

On the other hand, Defendant 2 asserted that the extinctive prescription does not run since he continued possession of the forest of this case. However, there is no evidence to acknowledge it, in addition, in addition to the fact-finding results on the head of the first instance court's Changwon District Court 2002Gau154, Defendant 3, around 2002, was conducted by public notice due to Defendant 3's unknown whereabouts at the time of filing a loan claim against Defendant 2, the Changwon District Court 2002Gau154, the defendant 1 and 2, and even in the lawsuit of this case, the plaintiff became aware of the domicile of Defendant 1, 2 through the fact-finding inquiry after receiving an order to correct address twice because the plaintiff was unable to know the domicile of the defendant 1 and 2, the domicile of Defendant 1, 2, the domicile of Defendant 1, and 2's resident registration card was changed at the time, the Si, Si, and the present domicile, and the fact-finding that Defendant 3 had occupied the forest of this case.

C) Furthermore, as to whether the right to claim for ownership transfer registration with respect to No. 3,262 of the instant forest land against Defendant 3 was extinguished, the title truster may terminate the title trust agreement at any time before the grace period under Article 11 of the Act on the Registration of Real Estate under Actual Titleholder’s Name expires after the enforcement of the said Act, and the title truster could have acquired the ownership of the relevant real estate at any time before the grace period under Article 11 of the said Act expires. The title truster’s title trust agreement becomes null and void under Articles 12(1) and 4 of the said Act, while the title trustee acquires the pertinent real estate after the grace period under Article 12(1) of the said Act without the real name transfer. Since Articles 3 and 4 of the said Act do not prevent the title truster from reverting to the title truster, the title trustee is obligated to return the relevant real estate acquired by him/her as unjust enrichment. Accordingly, the title truster’s right to claim for ownership transfer registration under Article 209(3) of the said Act expires after the lapse of the period under Article 1019(3) of the Civil Act.

Defendant 3 purchased 4,00 square meters of the instant forest, and 3,262 square meters of the instant forest, and at the time, Nonparty 2 was unable to register the ownership of the instant forest under its name because he did not reside in Gyeongnam-gun, Gyeongnam-gun, the seat of the instant forest. As seen above, the fact that the registration of ownership transfer of Defendant 3 was made on December 20, 192 with the Changwon District Court No. 14062, which was received on December 20, 1992, on the whole of the instant forest. According to the above facts, Nonparty 2 trusted Defendant 3 with title trust at 3,262 of the instant forest, which was owned by Defendant 3. Accordingly, upon the lapse of the grace period under Article 11 of the Real Estate Real Name Act, Defendant 3 acquired the complete ownership of the instant forest, and Nonparty 2 had the right to claim ownership transfer registration on July 1, 1996, which was made on July 1, 1996.

C) Therefore, Defendant 2 and Nonparty 2’s claim for ownership transfer registration of the instant forest became extinct upon expiration of the extinctive prescription, and eventually, Defendant 1 and 2’s claim for ownership transfer registration of the instant forest became impossible.

2) Cancellation of the instant sales contract

The deceased et al.’s successors, including the Plaintiff, expressed their intent to cancel the instant sales contract by the delivery of the complaint of this case, and the declaration of intent to cancel the instant sales contract was served on June 19, 201 on Defendant 1 and 2. As such, the instant sales contract was lawfully rescinded on June 19, 201.

Therefore, Defendant 1 and Defendant 2, who are jointly and severally liable as co-sellers of the instant sales contract, are obligated to pay to each Plaintiff money equivalent to 3/7 of the Plaintiff’s share of inheritance and damages for delay therefrom, out of KRW 260,00,000, paid from the Deceased for restitution due to the rescission of the instant sales contract.

C. Determination on Defendant 1 and 2’s assertion

1) Defendant 1 and 2 asserted to the effect that in the instant sales contract, the deceased did not pay any balance on the payment date of the remainder, and that in order for the plaintiff to cancel the instant sales contract, it should be prior to Defendant 1 and 2’s delay in performance by providing the remainder payment to Defendant 1 and 2. However, in cancelling the sales contract on the grounds that the seller’s obligation under the sales contract is impossible to perform, and for this reason, the seller’s obligation to pay the remainder is not required to provide such performance even if the other party’s obligation to pay the remainder is in the concurrent performance relationship with the seller’s obligation above (Supreme Court Decision 200Da22850 Decided January 24, 203), and that Defendant 2 and 1’s obligation to transfer ownership was impossible. In such a case, this part of the above Defendants’ assertion is without merit.

2) Defendant 1 and 2 asserted that the cancellation of the instant sales contract becomes effective when there are two or more parties to the contract, but only one of the inheritors of the deceased, is invalid. However, the inheritor, including the plaintiff, expressed his/her intention to cancel the instant sales contract by the delivery of the instant complaint to Defendant 1 and 2 on June 19, 201, and that the said declaration of intention was delivered to Defendant 1 and 2 on June 19, 201. Thus, there is no reason to assert this part of the Defendants’ assertion.

3) Defendant 1 and 2 asserted that the right to cancel the contract of this case is a kind of right to form a contract and the remaining payment period of the contract of this case expires after the lapse of the exclusion period of 10 years. Since the remaining payment period of the contract of this case was April 1, 1995, the deceased's right to cancel the contract of this case was terminated at the expiration of the exclusion period on April 1, 2005. However, as of July 27, 2003 and July 1, 2006, the date when the right to claim for the transfer of ownership transfer of the forest of this case against the deceased of Defendant 1 and 2 was extinguished, the deceased could have exercised the right to cancel the contract of this case from the above time. Accordingly, this part of the above defendants' assertion is without merit.

4) Defendant 1 and 2 asserted that they completed provisional disposition registration on August 5, 2002 in order to preserve the deceased’s right to claim ownership transfer registration on the ground of sale and purchase. Thus, the deceased expressed his intention not to exercise the right to cancel the instant sales contract. However, the deceased’s provisional disposition registration on the forest of this case was completed in order to preserve his right to claim ownership transfer registration based on the sales contract of this case, and Defendant 1 and 2’s right to claim ownership transfer registration on the forest of this case against Defendant 3 is impossible. As a result, the Plaintiff, the deceased’s heir, failed to obtain the ownership transfer registration on the forest of this case from Defendant 1 and 2, thereby cancelling the instant sales contract. Accordingly, there is no reason to assert this part of the Defendants’ assertion.

5) Defendant 1 and 2 asserted that the Plaintiff’s exercise of the right to cancel the contract can not be permitted in light of the principle of invalidation or the principle of good faith. However, the exercise of the right should be in accordance with good faith and not abuse of the right. Thus, if the Plaintiff’s exercise of the right to cancel 15 years after the date of the conclusion of the contract, which is 15 years after the date of the contract, has a justifiable reason to believe that the right would not be exercised within a reasonable period of time, then the Plaintiff’s exercise of the right to cancel 10 years thereafter would not be permitted in accordance with the principle of good faith and good faith which governs the entire legal order (see Supreme Court Decision 94Da1234, Nov. 25, 1994). Moreover, the Plaintiff’s exercise of the right to cancel the contract of this case as necessary for the conclusion of the principle of invalidation cannot be determined on the grounds that the Plaintiff’s exercise of the right to cancel 20 years after the lapse of the rights of the deceased’s heir and the obligor’s exercise of the right to cancel 10 days after the conclusion.

6) Defendant 1 and 2 alleged to the effect that the period of extinctive prescription of ten years has expired since the time when they received the instant sales price from the deceased was around 1995. However, Defendant 1 and 2 asserted that the Plaintiff’s claim for the refund of the said purchase price against the said Defendants had expired, but the Plaintiff’s claim for the refund of the purchase price against Defendant 1 and 2 was only caused by the rescission of the instant sales contract. As such, the Plaintiff was entitled to exercise the claim for the refund of the purchase price in accordance with the rescission of the contract from June 19, 201, which was lawfully rescinded, and therefore, the Defendant’s assertion

C. Sub-committee

Therefore, Defendant 1 and 2 are jointly and severally liable for non-joint and several liability as co-sellers. Thus, the above Defendants are obligated to pay to each Plaintiff the amount of delay damages calculated at the rate of 111,428,571 won (the sale price of KRW 260,00,000 x the Plaintiff’s share of inheritance 3/7,000 x less than the Plaintiff’s share of inheritance) corresponding to the Plaintiff’s share of inheritance out of the purchase price paid by the deceased to the Plaintiff from the date of the last receipt of the purchase price from the deceased from the date of November 3, 1994 to February 7, 2013, which is deemed reasonable for the Defendants to dispute over the existence or scope of the obligation to return from November 3, 1994 to the date of this decision, which is five percent per annum under the Civil Act and twenty percent per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment.

4. Conclusion

Therefore, the plaintiff's conjunctive claim against the defendant 1 and 2 is justified within the above scope of recognition, and the plaintiff's main claim against the defendant 3 and the remainder of the conjunctive claim against the defendant 1 and 2 are all dismissed for each reason, and the judgment of the court of first instance is modified upon the plaintiff's request changed in the court of first instance, and it is so decided as per Disposition.

Judges Cho Han-chul (Presiding Judge)