Registration of Cancellation of Ownership

The plaintiff exercised his right of return of unjust enrichment from title trust on the defendant village by subrogation of the delinquent taxpayer, but the statute of limitations for the right of return of unjust enrichment expires.

Article 404 of the Civil Act

Daejeon High Court 2016-Na11590 ( October 02, 2017), Daejeon High Court

Korea

aa

November 17, 2016

on October 02, 2017

1. Basic facts

The following facts are no dispute between the parties, or there is evidence Nos. 1, 2, 3-1 to 3, 4

Each entry of the evidence, each order of the first instance court to submit financial transaction information, and a part of the appellate court witness Aa

Testimony and the whole purport of pleadings may be recognized in full.

A. Aa was the defendant's representative from the beginning of the 1990s to the beginning of the 2000s.

(c)

(b) Aa on October 28, 2002, the Daejeon District Court Branch of the Daejeon District Court in 2002 other 874, 7592 (Duals)

The auction case (hereinafter referred to as the "related auction case") shall be referred to as bbb in the area of the mountain, the area of the mountain, the area of the mountainous district bbb.

M. 98,565/379,339 shares in the total real estate of this case, among forest land 65-12 forest land 379,399 square meters (hereinafter referred to as "total real estate of this case").

(hereinafter referred to as the "real estate shares in this case") of the defendant (the name of the defendant at the time is 'the name of the defendant in this case')

The co-owner's preferential purchase is reported in the name of "ridong System", and the co-owner's preferential purchase is permitted for sale on December 31, 2002.

The sale price of KRW 124 million was paid. Accordingly, the defendant on the share in the real estate of this case.

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The transfer registration of ownership in name was made on January 2, 2003.

C. The Daejeon District Court held on May 12, 2005 that the above sub-Dong of this case as Aa by 2005 Godan918 on May 12, 2005

Act on the Registration of Real Estate under Actual Titleholder's Name (hereinafter referred to as "Real Estate Real Name Act") shall apply to purchase and registration of mountainous district shares.

(a) sentenced a fine of KRW 700,000 to Aa on the ground that the violation constitutes a violation.

C. Appeal by Aa ( Daejeon District Court 2005No102) and appeal by the Supreme Court (Supreme Court 2005Do6255)

Each of the above judgments was dismissed, and the above judgments became final and conclusive as they were.

(d) The Plaintiff (competent director of the tax office) shall transfer income tax of KRW 128,849,958 to aa on January 6, 2014

(Period of payment: January 31, 2014; hereinafter referred to as "tax of this case") was determined and notified.

(e) Aa does not pay the tax of this case and is currently deposited in a post office, a new bank, and the Nonghyup Bank.

There is no particular active property except approximately KRW 380,000.

2. The assertion and judgment

A. As to the cause of claim

1) According to the above facts of recognition, the Plaintiff’s amount of KRW 128,849,958 against Aa in this case

Aa has a taxation right, and aa is currently insolvent.

2) According to the facts of the Pinin as seen earlier, Aa is the defendant as his representative.

Upon entering into a contract title trust agreement and having no knowledge of the above title trust agreement in the relevant auction case under the name of the defendant

the trustee by purchasing the shares of this case from the previous owner, and the ownership in the name of the defendant

Upon completion of the pre-registration (the Defendant’s title trust agreement between Aa and the instant real estate share).

3.3 5.3 5. 4. 5. 2. 2. 14.

In full view of a part of the testimony and the whole purport of the pleading by aa and aa, as mentioned above, between the defendant and Aa

It can be sufficiently recognized that the contract title trust agreement has been concluded.

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In such a case, the title truster aa and the defendant who is the title trustee

shall be void or the defendant shall acquire the full ownership of the property, except that the defendant shall stay.

The obligation to return unjust enrichment on the sea is subject to the obligation to return unjust enrichment on the part of this case.

Since the above contract title trust agreement was made after the enforcement of the Real Estate Real Name Act, Aa

aa is not entitled to acquire the ownership of the share in real property, and such title trust agreement becomes null and void

the defendant is the purchase fund provided to the defendant, not the above real estate share itself.

unjust enrichment to be returned to the Corporation shall be KRW 124 million, a fund for purchase of the shares in this case.

This would be the Supreme Court (see, e.g., Supreme Court Decision 2014Da30483, Aug. 20, 2014).

3) Therefore, the Defendant shall consider the instant tax claim as the preserved bond, barring special circumstances.

A 124 million won of the above purchase fund to the plaintiff who exercises by subrogation the above claim for return of unjust enrichment under Aaa

There is an obligation to pay the original and any damages for delay.

B. As to the defendant's argument

1) Whether the obligation to return unjust enrichment has been fulfilled

A) A title trust agreement between the parties to the contract title trust is valid, i.e., the title truster

Under the premise that a person has an internal ownership, the second title truster will be entitled to real estate for the future purposes.

Transfer of ownership registration or payment for disposal of real estate to a title truster;

If an agreement was made with the content that the title trust agreement is null and void, it shall be the real estate office.

In accordance with Article 4(1) of the Act, a title trustee shall be deemed null and void. However, as seen earlier by the title trustee.

under the premise of the full acquisition of ownership by such person, ex post facto between the title truster and the title truster

In lieu of performing the obligation to return the purchase fund, the trustable real estate itself is agreed to be transferred.

If the registration of ownership transfer is completed in the future of the title truster, the registration of ownership transfer.

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agreement is null and void because it is based on the agreement for the benefit of substitute property, which is the cause of the transfer of ownership.

other special circumstances, such as merely a liability to supplement ex post facto on behalf of the title truster, etc.

(1) The property is the property of a title trust and the property is the property of a title trust.

not denying the validity (see the above Decision 2014Da30483, supra).

B) The aforementioned evidence reveals that Gap evidence Nos. 5, Eul evidence Nos. 1 and 2 and the purport of the whole pleadings

In full view of the foregoing, the 100,166 square meters of the entire real estate of this case among the entire real estate of this case shall be the Dogdogs of Gyeyang-si on January 29, 2004.

The fact that the registration was made by dividing the forest land of 65-61 forest land (hereinafter referred to as the "land of 65-61 forest land of this case") and the gambling

D. On April 2, 2007, on real estate of this case 65-61, the sale was made on September 1, 2005

The fact that a registration of transfer of ownership has been completed may be recognized.

a, however, for the exercise of its property rights in respect of the shares in the instant real property

Busan 65-61 The general meeting of the defendant, etc. in the process of the registration of transfer of real estate

facts, etc. which did not go through, may be recognized by the evidence mentioned above, and such circumstances may be found

In light of the above, the defendant is subject to the full acquisition of ownership as to the shares of this case.

In lieu of the performance of the obligation to return unjust enrichment to the extent of the above purchase fund, later between A and A.

It is difficult to deem that an agreement was reached to transfer the above real estate.

This part of the argument that the Defendant’s obligation to return unjust enrichment has been fulfilled is unacceptable.

2) Whether the extinctive prescription has expired

A) A claim for return of unjust enrichment may be exercised simultaneously with the occurrence of such claim. Aa to the defendant

The claim for the return of unjust enrichment from the purchase fund in the name of the defendant for the share in the real estate in this case

It is reasonable to view that the registration of ownership transfer was made on January 2, 2003, for which the plaintiff filed the lawsuit in this case.

at least 10 years after the date of the above occurrence, to apply for change of the purport and cause of the claim as of October 21, 2015

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record, at the time of submitting a statement, that the claim for return of unjust enrichment was asserted and exercised in subrogation of aa

Since it is apparent that extinctive prescription of the above claim for return of unjust enrichment is a vicarious exercise of the plaintiff's above right.

Before completion.

B) The Plaintiff, on April 2, 2007, as to the real estate of this case to aa on April 2, 2007

The extinctive prescription shall be interrupted by approving the obligation to return unjust enrichment by performing the pre-registration procedure; or

In the instant lawsuit, the existence of the obligation to transfer ownership to Aa or the obligation to return unjust enrichment

It argues that the benefit of extinctive prescription was renounced by accepting the existence of the statute of limitations.

However, the transfer registration of April 2, 2007 on the real estate in Busan 65-61 was unjust enrichment.

As seen earlier, it cannot be deemed as having been made in lieu of performing the obligation to return (as above)

If the performance of the obligation to return unjust enrichment was replaced by the performance of the obligation to return unjust enrichment, the obligation to return unjust enrichment had already been

Since the completion of extinctive prescription is no longer problematic, it is not the defendant.

aa For the exercise of its property rights in respect of the shares in the instant real property by an individual above 65-61

The obligation to return unjust enrichment was approved solely on the ground that the registration of transfer of real estate was completed.

It cannot be viewed that there is no reason to view.

On the other hand, aa is the representative of the defendant on the second day for pleading of the first instance court of this case.

Attendance and attendance of the village people to pay taxes as much as possible as possible at the request of the plaintiff.

I want to extend the time limit until February 2016, because there is money only to do so.

(c)It is apparent that it has made a statement to that effect, but aa is the defendant and the employment of the defendant and others corresponding thereto;

person who enters into a contractual relationship and deals with or assists in the ordinary affairs of this case, or otherwise

Lawsuits other than attorneys-at-law prescribed in Article 88(1) of the Civil Procedure Act and Article 15(2) of the Rules of Civil Procedure

Since there is no evidence to see that the person is qualified for interest, it is stuffed despite the permission of the first instance court.

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No piracy cannot be viewed as a legitimate attorney of the defendant, and the purport of the whole pleadings for the aforementioned evidence.

In full view of all the foregoing, the defendant's representative or any of its members shall give Aa the above statement of opinion.

Inasmuch as there is no authority to do so, only the above statements in Aaa can be acknowledged.

to the plaintiff or aa, or waiver of the prescription interest.

It is difficult to see that aa has made an expression of intent for the defendant (a) that has performed a litigation on behalf of the defendant;

In the transmission process, no express assertion of the above obligation to return unjust enrichment has been made, and such return of unjust enrichment has been made.

on the ground that the existence of the obligation is recognized, a written objection to the ruling of recommending the compromise of the first instance court is filed.

However, aa cannot be deemed to have a legitimate power of attorney, and such speech and behavior cannot be deemed to have been made.

giving rise to the effect of giving up the benefit of debt or giving up the benefit of extinctive prescription to the defendant

(2) No person shall be deemed to have obtained the approval.

The Plaintiff’s assertion on the interruption of extinctive prescription or the waiver of prescription benefit cannot be accepted.

3. Conclusion

The plaintiff's claim shall be dismissed for lack of reason. The judgment of the court of first instance shall be dismissed for a different conclusion.

The defendant's appeal is reasonable, and the judgment of the first instance is accepted and the plaintiff's appeal is revoked.

The judgment is dismissed. It is so decided as per Disposition.