In a case where the judgment, etc. of a lawsuit filed by the title truster against co-inheritors who succeeded to the status of the title trustee becomes final and conclusive at a different time respectively, whether the "date of final and conclusive judgment, etc. as to the relevant lawsuit" under Article 11 (4) of the Act on the Registration of Real Estate under Actual Titleholder's Name refers to the time when the final and conclusive judgment, etc. becomes final and conclusive (affirmative), and whether the application for rectification of a judgment, etc. is a "litigation as to the real right to real estate" under Article 11

The "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 is a party to the relevant real estate and is one of the parties to the dispute to have it confirmed officially. In addition, the case where the co-inheritors who succeeded to the status of the trustee as the other party to the dispute filed a lawsuit with the other party to the dispute and the judgment becomes final and conclusive at each time, the purport of the lawsuit is the whole title trust relation. Therefore, it is reasonable to view the time when the final and conclusive judgment, etc. became final and conclusive as the object of the lawsuit is the day when the final and conclusive judgment, etc. has become final and conclusive. In such a case where the title truster applied for the correction of the judgment, etc. without taking part in the lawsuit, due to the error in the judgment, etc., within a considerable period after the lawsuit becomes final and conclusive, and it is deemed that the lawsuit as to the real right to the relevant real estate has been pending.

Article 11 (4) of the Act on the Registration of Real Estate under Actual Titleholder’s Name.

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jong-soo and 1 other, Counsel for plaintiff-appellant)

Appellant (Law Firm International Law Office, Attorneys Kim Dai-ju et al., Counsel for the plaintiff-appellant)

Busan District Court Order 96Ra336 dated February 26, 1997

The order of the court below is reversed, and the case is remanded to Busan District Court Panel Division.

The grounds of reappeal are examined.

Article 11(1) of the Act on the Registration of Real Estate under Actual Name (hereinafter referred to as the "Act") provides that a grace period of one year shall be granted to the existing title truster at the time of the enforcement of the Act, and that the real name registration shall be made within the said period, and Article 11(4) of the Act provides that "where litigation on the real right to real estate is instituted to a court before this Act enters into force or during the grace period, the actual name registration or the sale of the real estate shall be made within one year after the final and conclusive judgment (including the case having the same effect as this)," thereby allowing an extension of the grace period for conversion of real name. Meanwhile, Articles 12(1) and 4(1) of the Act provides that "where an application for registration of real estate under title trust is not made within the period prescribed in Article 97 of the Act, the title truster's title trust agreement after the said period has elapsed shall be deemed null and void by the enforcement of the Act on the Registration of Real Estate under Actual Name to the extent that it becomes effective for a temporary change of title Trust.

Therefore, the existing title trust relationship shall not be invalidated as long as the above lawsuit was filed before the enforcement of the law or during the grace period, and the application for registration based thereon was made within the grace period of one year from the date of final judgment and decision of correction.

According to the records, on December 17, 1993, prior to the enforcement of the Act, the re-appellant filed a lawsuit for ownership transfer registration on the ground of termination of title trust against 9 persons, including the re-appeal and 2, who succeeded to the status as trustee of the non-appeal and 1, from among the co-inheritors, on the premise that a title trust relationship was established between the deceased non-appeal and 1, prior to the enforcement of the Act. The re-appellant filed a lawsuit for ownership transfer registration on the ground of termination of title trust. The Re-Appellant's decision as to 3, including the non-appeal and 2, among the co-inheritors, and the fact that there was an error in the indication of the parties in the protocol of recognition and recognition is revealed to be late, without filing an application for correction of the real name registration as to the above 3-party's decision on September 3, 1996, and the public official applied for registration of ownership transfer as of September 30, 196.

If the facts are the same, the above lawsuit is subject to the whole title trust relation, and the application for correction is made within a reasonable period after the decision of the above lawsuit becomes final and conclusive, it is reasonable to view that the above series of lawsuits and the decision of correction thereof fall under the "litigation as to the real right to real estate" under Article 11 (4) of the Act, and therefore, as long as the above application for registration was made on September 30, 1996, which is one year grace period from the date of the above decision of correction, the validity of the existing title trust agreement remains effective.

Nevertheless, the court below held that the existing title trust agreement is invalid since the grace period under the law has already expired at the time of the application for the registration of this case, and thus the above application for registration based thereon is unlawful. In this regard, there is an error of misunderstanding of legal principles as to the validity of grace period under the Act and the existing title trust agreement, and the reappeal is with merit.

Therefore, the order of the court below is reversed without examining the remaining grounds for reappeal, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Song Jin-hun (Presiding Justice)