[1] Whether the imposition of penalty surcharge for registration of title trust and penalty surcharge for imposition of a long-term unregistered penalty surcharge under one of the grounds for imposition of penalty surcharge for registration of title trust can be determined as lawful on the ground that there are other grounds than the grounds for imposition (negative in principle

[2] In a case where a purchaser of land located within a land transaction permission zone under the former National Land Planning and Utilization Act did not obtain a land transaction permission, whether a penalty surcharge may be imposed on the ground that he/she did not file an application for registration of ownership transfer within the period under Article 10(1) of the Act on the Registration of Real Estate under Actual Titleholder’

[1] Article 5(1)1 of the Act on the Registration of Real Estate under Actual Titleholder’s Name provides that any person shall not register any real right to real estate in the name of the title trustee pursuant to the title trust agreement (Article 3(1)), and that any title truster who violates this provision shall impose a penalty surcharge within the amount equivalent to 30/100 of the value of the pertinent real estate (hereinafter “ penalty surcharge for registration of title trust”). In addition, Article 5(1)1 of the Act provides that any person entitled to registration, etc. who fails to file an application for registration of title transfer within three years from the date the performance of any consideration is completed, who enters into a contract on the transfer of real estate and fails to file an application for registration of title transfer, shall be subject to a penalty surcharge within the extent of 30/100 of

As such, the penalty surcharge for registration of title trust and the penalty surcharge for long-term unregistered registration are different in terms of the form, requirements for imposition, and basis of an offense, and thus, the grounds for imposition of each penalty surcharge cannot be deemed identical to the basic facts among themselves. Therefore, barring any special circumstance, deeming the imposition of the penalty surcharge as lawful on the grounds that there are grounds other than the relevant grounds for imposition, not for one of the grounds for imposition, is beyond the limit of the ex officio review principle under

[2] A contract for land transaction within a zone subject to land transaction permission under the former National Land Planning and Utilization Act (amended by Act No. 13797, Jan. 19, 2016) cannot be subject to a claim for the performance of any of the terms and conditions regarding the transfer or creation of rights since the said contract becomes null and void due to the lack of the in personam effect until obtaining permission from the competent administrative agency. Therefore, a penalty surcharge may not be imposed even if a purchaser of land within a zone subject to land transaction permission did not file an application for the registration of ownership transfer within the period prescribed by Article 10(1) of the Act on the Registration of Real Estate under Actual

[1] Articles 3(1), 5(1)1, and 10(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name / [2] Article 118(1) of the former National Land Planning and Utilization Act (Amended by Act No. 13797, Jan. 19, 2016); Article 10(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name

[2] Supreme Court Decision 2009Du8090 decided Oct. 15, 2009 (Gong2009Ha, 1889)

Plaintiff 1 and one other (Law Firm Lee, Attorneys Choi Young-young et al., Counsel for the plaintiff-appellant)

Guang-si Market

Seoul High Court Decision 2016Nu41424 decided September 6, 2016

The part of the lower judgment against Plaintiff 2 is reversed, and that part of the case is remanded to the Seoul High Court. Plaintiff 1’s appeal is dismissed. The costs of appeal against Plaintiff 1 are assessed against Plaintiff 1.

The grounds of appeal are examined.

1. If deemed necessary in an appeal litigation, the court may ex officio examine evidence and determine the facts that the parties have not claimed (Article 26 of the Administrative Litigation Act). This also provides for partial exceptions to the principle of party and the principle of pleading, taking into account the special nature of the administrative litigation. However, even in such case, it is permitted to determine whether an administrative disposition is justifiable by recognizing a new ground for disposition only to the extent that it is consistent with the original ground for disposition and basic facts (see, e.g., Supreme Court Decision 2011Du26589, Aug. 22, 201

Article 5(1)1 of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”) provides that no person shall register a real right to real estate in the name of a title trustee pursuant to a title trust agreement (Article 3(1)); and that a penalty surcharge shall be imposed on a title truster who violates this provision within the limit of an amount equivalent to 30/100 of the value of the relevant real estate (hereinafter “ penalty surcharge for registration of title trust”). In addition, Article 5(1)1 of the Act provides that a person entitled to registration, etc. who enters into a contract on the transfer of real estate and fails to file an application for registration of ownership transfer within three years from the date the performance of consideration is completed, shall impose a penalty surcharge within the limit of 30/100 of the appraised value of the real estate (hereinafter “long-term unregistered penalty surcharge”).

As such, the penalty surcharge for registration of title trust and the penalty surcharge for long-term unregistered registration are different in terms of the form, requirements for imposition, and relevant provisions, and thus, the grounds for imposition of each penalty surcharge cannot be deemed identical to the basic facts among themselves. Therefore, barring any special circumstance, to determine legitimate on the ground that the grounds for imposition of the penalty surcharge for one of the reasons for imposition exist, other than the relevant grounds for imposition, rather than the relevant grounds for imposition, the imposition of the penalty surcharge,

Meanwhile, a contract for land within a zone subject to land transaction permission under the former National Land Planning and Utilization Act (amended by Act No. 13797, Jan. 19, 2016) cannot be subject to a claim for the performance of any content regarding the transfer or creation of rights since the said contract becomes null and void due to the lack of the in personam effect until obtaining permission from the competent administrative agency. Therefore, insofar as a purchaser of land within a zone subject to land transaction permission fails to obtain a land transaction permission, a penalty surcharge may not be imposed even if he/she did not file an application for the registration of ownership transfer within the period under Article 10(1) of the Real Estate Real Name Act (Supreme Court Decision 2009Du8090, Oct. 15, 2009).

2. According to the reasoning of the judgment of the court below and the judgment of the court of first instance cited by the court below, the following facts are revealed. ① around January 2002, the plaintiff 1 and the non-party 1 purchased 1/2 shares of the 1,722 square meters (hereinafter "the land of this case") prior to the king-si ( Address omitted) from the owner non-party 2, but on April 19, 2002, the non-party 1 completed the registration of ownership transfer as to the whole of the land of this case under its own name, and the plaintiff 1 completed the registration of ownership transfer as to May 23, 202 to secure their shares instead, the non-party 1 and the non-party 1 as the debtor. ② The non-party 1 purchased shares of the non-party 11/200,000 won among the land of this case from the non-party 1 to the non-party 2, the plaintiff 2 and the non-party 1 as to the land of this case.

3. Based on the above factual basis, we first examine the part concerning Plaintiff 1 among the instant dispositions.

In full view of the circumstances acknowledged in the first instance judgment, the lower court determined that the instant disposition against Plaintiff 1 was lawful on the ground that: (a) Plaintiff 1 actually acquired 1/2 shares out of the instant land; and (b) Plaintiff 1 concluded a title trust agreement with Nonparty 1 on May 23, 2002 when the establishment registration of the neighboring mortgage on the instant land was completed; (c) Plaintiff 1 owned the ownership of the said shares on the ground that the title trust registration was made in the name of Nonparty 1, but the relevant registration was made in the name of Nonparty 1; and (d) the instant disposition against the Plaintiff 1 was lawful on the ground that the instant disposition was in violation of Article 3(1)

Examining the record, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles as to Article 5(1) of the Real Estate Real Name Act. The precedent that “no penalty may be imposed before obtaining a land transaction permit” invoked by Plaintiff 1 (Supreme Court Decision 2009Du8090 Decided October 15, 2009) concerns a long-term non-registration penalty governed by Article 10(1) of the Real Estate Real Name Act, and thus, it cannot be invoked in the instant case where the title trust registration was completed in the future of Nonparty 1.

4. Next, we examine the part concerning Plaintiff 2 among the instant disposition.

As seen earlier, the instant disposition does not distinguish between Plaintiff 2 and Plaintiff 1, and “The Plaintiff purchased 1/2 shares of each of the instant land from Nonparty 2 on April 19, 2002, and registered it in the name of Nonparty 1 from April 19, 2002 to January 5, 201, and violated Article 3(1) of the Real Estate Real Name Act.” However, even based on the factual basis acknowledged by the lower court, the instant land was purchased from Nonparty 2 on April 19, 2002 and the title trust was made to Nonparty 1 in the process of the transfer registration, and thus, the grounds for disposition presented in the instant disposition against Plaintiff 2 are not acknowledged.

Nevertheless, the lower court determined that the instant disposition against Plaintiff 2 was lawful on the ground that “Plaintiff 2 paid part of the purchase price at the time of purchase of Nonparty 1’s equity on January 2, 2004, and completed the registration of ownership transfer with land transaction permission on January 5, 201 with respect to shares 1/2 of the instant land, and Nonparty 1 cooperateed with Plaintiff 1 and external villages so that the Plaintiffs could obtain land transaction permission and registration of ownership transfer, and thus, it may be deemed that there was an implied or marina trust agreement with Plaintiff 2.” Ultimately, the lower court determined that the instant disposition against Plaintiff 2 was lawful. Ultimately, the lower court’s determination that the content recognized as the grounds for disposition against Plaintiff 2 was either nominal trust with Nonparty 1 or purchased shares from Nonparty 1 on January 5, 2011, which should have been completed the registration of ownership transfer under the Real Estate Real Name Act.

However, if the above violation is established by the court below, the purport that Plaintiff 2 constitutes the ground for imposing the penalty surcharge for the registration of title trust under a violation of Article 3(1) of the Real Estate Real Name Act by conducting title trust to Nonparty 1, the ground for the disposition of this case is not identical even if simply comparing the ground for disposition of this case, if the ground for the disposition of this case differs from the point of time of purchase, seller, and the period of the title trust agreement, and it is difficult to view that the basic facts are identical. In addition, if the ground for disposition recognized by the court below constitutes the ground for imposing the long-term unregistered penalty surcharge under Article 10(1) of the Real Estate Real Name Act, such judgment of the court below is unlawful as it goes beyond the limit of the ex officio examination principle allowed by the Administrative Litigation Act in light of the legal principles as seen earlier. In addition, even if it is based on the factual basis recognized by the court below, since Plaintiff 1 purchased the shares of Nonparty 1 1/2 from the land of this case independently or jointly by the plaintiffs around January 5, 2004.

Therefore, the lower court erred by misapprehending the legal principles on the ex officio review principle and the application of Article 5 of the Real Estate Real Name Act under the Administrative Litigation Act, thereby adversely affecting the conclusion of the judgment.

5. Therefore, the part of the judgment of the court below against Plaintiff 2 is reversed, and that part of the case is remanded to the court below for a new trial and determination. The appeal by Plaintiff 1 is dismissed, and the costs of appeal by Plaintiff 1 are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)