[1] The meaning of "litigation on real estate rights" under Article 11 (4) of the Act on the Registration of Real Estate under Actual Titleholder's Name

[2] The case holding that in a case where the court below filed a lawsuit claiming the registration of ownership transfer against the defendant(s) before the enforcement of the Act on the Registration of Real Estate under Actual Titleholder's Name, where the plaintiff(s) filed a lawsuit claiming the registration of ownership transfer based on the cancellation of title trust agreement against the defendant(s) before the execution of the Act on the Registration of Real Estate under Actual Titleholder's Name, but the above real estate was ruled against the defendant because it was owned by the father(s) and the plaintiff(s) filed a lawsuit claiming the registration of ownership transfer based on the cancellation of title trust against the defendant within one year from the day the judgment became final and conclusive, the above series of lawsuits shall become a whole and fall under the "litigation as to the real estate property right" under Article 11(4) of the Act on the

[3] Whether Article 8 of the Act on the Registration of Real Estate under Actual Titleholder’s Name may apply mutatis mutandis to a case where a natural village holds a title trust with a father-in-ownership of real estate owned by the father-in-ownership (affirmative)

[1] 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 asserts that he/she is the actual right holder of the pertinent real estate as the party and is an action to be confirmed officially.

[2] The case holding that even if the plaintiff non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party.

[3] Article 8 of the Act on the Registration of Real Estate under Actual Titleholder’s Name provides for special provisions that allow title trust only in cases where a clan title trust is held by another person and where a title trust is held by the spouse, considering the historical background and practical practices of our country and the lack of potential to abuse the real estate registration system. In the case of natural fatherin, even in the case of natural fatherin, there has been practices that allow title trust to the father in the real estate owned by the fatherin, and the abuse of the real estate registration system to prevent the same Act is not significant. Therefore, the need for protection is no more than that of a clan. Thus, the provision of Article 8 of the same Act shall apply mutatis mutandis to the case where a natural fatherins title trust to the fatherins.

[1] Article 11 (4) and / [2] Article 11 (4) and / [3] Article 8 of the Act on the Registration of Real Estate under Actual Titleholder’s Name

[1]

Supreme Court Decision 96Da55846 delivered on April 8, 1997 (Gong1997Sang, 1395), Supreme Court Decision 98Da12874 delivered on June 26, 1998 (Gong1998Ha, 1992), Supreme Court Decision 98Da30827 delivered on November 10, 1998 (Gong198Ha, 2841), Supreme Court Decision 98Da1027 delivered on January 26, 199 (Gong199Sang, 347)

Yangsan-si Gyeong-si (Attorney Yang Sung-hee, Counsel for the defendant-appellant)

Seocho-hee (Attorney Kim Jong-hee et al., Counsel for the defendant-appellant)

Ulsan District Court Decision 97Da8945 delivered on June 18, 1998

1. The judgment of the court below is revoked.

2. On June 3, 1997, the Defendant shall implement the registration procedure for transfer of ownership on the ground of termination of title trust on June 3, 1997 with respect to the Plaintiff’s share of 1/2 of the forest land listed in attached Table 1 and one-six of the forest land listed in attached Table 2

3. The costs of the lawsuit shall be borne by the defendant in both the first and second instances.

The judgment of the court below is revoked, and the defendant is delivered with the decision of the court below. Preliminaryly, the defendant is attached to the plaintiff.

The judgment of the court or the defendant ordering the plaintiff to implement the procedure for the registration of transfer of ownership shares based on the restoration of the title of each of the forest listed in the 1/2 shares and 1/6 shares of the forest listed in the annexed Table 2, among the forest listed in the 1/2 shares and the annexed Table 2, or the defendant ordered the plaintiff to implement the procedure for the registration of cancellation of each of the above shares of the forest listed above with respect to the above shares of the court,

1. Determination on this safety defense

The judgment of this court on this part is identical to the judgment of the court below, and it is also accepted by Article 390 of the Civil Procedure Act.

2. Judgment on the merits

A. Facts of recognition

The following facts may be acknowledged in full view of the following facts: Gap evidence 1, 2, Eul evidence 1, 3, 4, Eul evidence 5-1, 2, 3, 6-6, 7, 10 through 14, 19, 20, 23, 24, 25, 28, 29, 32, 33, 36, Gap evidence 7, Eul evidence 1, 2, 5-1, 5-2, Eul evidence 6-1, 8-1, 2, 9-1, 9-2, and 9-1 through 21 of the evidence 8-1, 9-1, 6-2, and Eul evidence 6-1, 9-1, and 6-1, and 7, 10 through 14, 20, 203, and 36, and 39, Eul evidence 7, and Eul evidence 5-2 of the court below's order of witness testimony.

(1) In around 1531, 1531, the non-party 1, which is the straw, which was achieved by the plaintiff 1's son, was naturally formed in the upper west west west west west west west west, and the commercialization of the real estate was initiated by around 1970, and most of the residents was the people of the west west west west, but they were also at the same time in the relationship between the west west west and the relatives, but these were also achieved by the people in the relationship between the west west west west and the son son Do, which was achieved by the above descendants, and the boundary between the members of the west west west, which was achieved by the above descendants, was clearly distinguishable (as seen below, the defendant also sold the real estate owned by the plaintiff son to the non-party west Do, and at the same time, took charge of the above financial affairs of the son Do).

(2) Each forest land listed in the separate sheet (hereinafter “each forest land of this case”) was owned jointly by the plaintiff son. At the time of the situation of land, the plaintiff son was under the name of one or several village citizens on November 20, 1917 with respect to the forest land listed in the separate sheet No. 1 (hereinafter “1 forest land”). On November 21, 1917, with respect to the forest land listed in the separate sheet No. 2 (hereinafter “2 forest land”), the defendant and the defendant were under the name of the non-party clerk, Seo-hee, Seo-ho, Pho, Seo-gu, Seo-ho, Seo-gu, Seo-gu, Seo-gu and Seo-gu index, etc., and the defendant 1 and the defendant 2 were appointed for each of the above 7 forest land, and the defendant 1 and the defendant 1 and the defendant 2 were appointed for each of the above 7 forest land under the Act on Special Measures for the Registration of Ownership of Real Estate under their joint ownership.

(3) After that, in order to raise expenses to be incurred in the roof improvement project of the housing located in the village located in the Saemaul project around 1973, the residents of the plaintiff village decided to sell the real estate belonging to their collective ownership to the non-party 1, who is the non-party 1, who is the non-party 6, who is the co-owner of the housing located in the village. On April 6, 1973, the plaintiff 1 had completed the registration of ownership transfer in the above state-type in the name of the title trustee (in the case of the non-party 1, who already died among the co-trustees, through the inheritance registration of the property heir), but the defendant 6, who is not aware of the above fact that the non-party 6, who was the non-party 3, who was the five 5 son in the middle of the 1 forest, was installed in the forest-type, and the 2 forest-type was excluded from the sale of the above state-owned land by taking account of the fact that there is no evidence that the plaintiff 6's testimony and the above 6, etc.

(4) However, on April 4, 1973, the title of the forest of this case was registered on April 4, 1973 by inheritance of five property successors, including Nonparty Seocho-hee, as the title holder of each of the forest of this case died, and on the 6th of the same month, the ownership transfer registration was made in the name of Defendant and clerk for each of the forest of this case on the grounds of sale and purchase of the entire shares of the above successors (this extension was made from 1/3 to 1/2; Defendant’s co-ownership share in each of the forest of this case was expanded from 1/3 to 1/2; Defendant’s co-ownership was expanded from 1/3 to 2 with respect to the forest of this case; Defendant’s co-ownership was newly acquired 1/6 shares with respect to the forest of this case from 1/3 to 1/2 with respect to the forest of this case; Defendant’s co-ownership share in 2

(5) After that, on March 14, 1994 with the permission of the clerk, the Chosung Chodong-gu Council entered into force on his co-owned share among the forest of this case pursuant to the Act on Special Measures for the Registration of Ownership of Real Estate (Act No. 4502), which was enforced on August 30, 1980; on May 10, 1994 with respect to the forest of this case, the Chodong-gu's co-owned share transfer registration was completed on June 23, 1994 with respect to the co-owned share of the Phodong-gu in the forest of this case on the ground of sale on May 10, 1980.

(6) Meanwhile, in order to obtain the Defendant’s co-ownership share transfer among the forest of this case, the court below dismissed the appeal on August 2, 1996 on the ground that the actual owner of each forest of this case was under the above sentence, and the registration of ownership transfer under the Defendant’s name was based on the title trust under the above sentence. However, on October 20, 194, this court filed a lawsuit against the Defendant for the registration of ownership transfer on the ground that the ownership transfer was based on the title trust under the above sentence. However, on July 6, 1995, the court dismissed the claim under the above sentence on the ground that the actual owner of each forest of this case was a third party, not the above sentence, but the above sentence was under Busan High Court 95Na8201, but the appellate court also dismissed the appeal on the same ground as Busan High Court 96Da40370, but also dismissed the appeal on February 11, 1997.

3. Judgment on the plaintiff's claim

A. The parties' assertion

As the primary cause of claim in this case, the Plaintiff asserted that the forest in this case was jointly owned by the Plaintiff, and the Defendant’s co-ownership was held in title, and that the title trust contract was terminated by the delivery of the complaint in this case and that the Defendant sought the implementation of the procedure for the registration of ownership share transfer to the Defendant on the ground of this, the Defendant asserted that the Plaintiff may not file a claim for the registration of ownership transfer of the Defendant’s share in each of the forest in this case as the grounds for the cancellation of the invalid title trust contract, because the Plaintiff did not complete the registration of real estate name transfer within one year after the grace period of the enforcement of the Act on the Registration of Real Estate under Actual Titleholder’s Name (No. 4944 of March 30, 195, hereinafter referred to as the “Act”).

(b) Markets:

(1) Validity of the title trust agreement

Article 4 of the above Act, which was enforced on July 1, 1995, null and void a title trust agreement (paragraph (1)), and any change in real rights to real estate under a registration made pursuant to a title trust agreement shall also be invalidated (main sentence of paragraph (2)), except where the other party who entered into a contract with the title trustee for the acquisition of real rights to real estate did not know that the title trust agreement exists (the proviso of paragraph (2)). Meanwhile, Article 11(1) of the above Act provides that the grace period of one year from the date of enforcement of the above Act shall be set at the grace period of one year from the date of enforcement of the above Act, and the title trust agreement after the expiration of the grace period shall be null and void pursuant to Article 4 of the above Act. Thus, the title trust agreement before the enforcement of the above Act shall also be deemed null and void pursuant to the provisions of Article 12(1) of the above Act, since the title trust registration under the name of the plaintiff 1 was completed on July 2, 1996 (the title trust registration under the above Act shall be deemed null and void from 17.

(2) Whether Article 11(4) of the Act on the Registration of Real Estate under Actual Titleholder’s Name is applied

(A) However, Article 11(4) of the above Act provides that a lawsuit on the real right to real estate was instituted before the enforcement of the above Act or during the grace period, the real name registration, etc. may be made within one year after the final and conclusive judgment on the lawsuit (including the case having the same effect as the above). Article 12(1) of the above Act permits an extension of the grace period for conversion of real name by failing to deem a title trust agreement null and void within the above period. The purport of the above Act is not only to prevent title trust of real estate widely recognized through long-term precedents from the enforcement of the above Act, but also to prevent social confusion that may arise due to denial of title trust agreements and judicial effectiveness of registration based thereon, and to ensure that the above legal status of the plaintiff is valid for a limited period of time before the enforcement of the above legal proceedings, and thus, it is reasonable for the title truster to have the right to the real estate transferred to him by the court of title trust as an organization for the purpose of cancellation of title trust within the aforesaid ten-year period of time.

(B) In addition, the purpose of the above law is to prevent anti-social acts, such as speculation, evasion, and evasion of laws, which abuse the real estate registration system, and to normalize real estate transactions and to stabilize real estate prices by having the ownership and other real rights of real estate registered under the name of the actual right holder so as to conform to the substantive legal relationship (Article 1 of the Act). The above law, where a clan title trust is held to another person or where a family title trust is held to a spouse, the registration in the name of the clan is possible and the marital separation system is enforced, but there is a special provision allowing title trust only in cases where there is no specific deviation purpose in our country (Article 8 of the Act), considering the historical background and practical practices of our country and the lack of the possibility of abusing the real estate registration system (Article 8 of the Act). In the case of natural fathers, such as the plaintiff, there has been practices to put the real estate held by the deceased in title trust, and thus, it is not necessary to protect the same, but it is not necessary to be applied to the above special provisions of Article 8 of the above law.

(C) Therefore, the Plaintiff’s title trust agreement with the Defendant is valid, and the above title trust agreement was delivered to the instant complaint stating the Plaintiff’s intent to terminate the trust on June 3, 1997, and was lawfully terminated. Therefore, the Defendant is obligated to implement the registration procedure for transfer of ownership shares due to the termination of the title trust on each of the instant forests and fields.

4. Conclusion

Therefore, the plaintiff's primary claim shall be accepted for the reason that it is reasonable, and the judgment of the court below which has different conclusions is unfair, and it is so revoked and it is so decided as per Disposition with the plaintiff's primary claim accepted.

Judges Kim Shin (Presiding Judge) Lee Dong-soo