In a case where a title trustee, who received a title trust on a part of each part of the lots of land, voluntarily owns the specific land in accordance with a co-owned property partition agreement with another co-owner who has no relationship of title trust, and transfers the remaining shares in the land to another co-owner, whether the title trust relationship exists as to the whole

[Majority Opinion] In a case where the title trustee, who received a title trust, owns a specific parcel of land independently and transfers shares in the remaining land to another co-owner by consultation with other co-owners who have no relationship of title trust at will, the title trustee, formally, takes the same form as the acquisition by succession of the registration title of another co-owner’s co-owner’s share in several parcels of land which are substantially nominal trust, but it is merely a change in the form of ownership of the specific land acquired by concentrationing the share in several parcels of land which are substantially nominal trust due to division. Thus, even if the co-owned property partition was made regardless of the will of the title truster, the title trust relationship between the title truster and the title trustee shall continue to exist

[Dissenting Opinion] If the title trustee, who received a trust from the title truster, arbitrarily transfers to other co-owners each share of the title trustee in the remaining land except a specific land in the form of a co-ownership agreement with other co-owners who did not have any title trust relationship with respect to the above real estate, and received each share of the other co-owners in the above specific land, the legal relation is deemed to have been disposed of by the title trustee as long as the title trustee’s shares in the name of trust with respect to the remaining land except the above specific land were disposed of. Thus, the title trust relationship between the title truster and the title trustee with respect to the remaining land except the above specific land was extinguished. The trustee’s shares in the trust with respect to the remaining land except the above specific land were transferred to the above specific

Articles 103 [title trust] and 269 of the Civil Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant-appellee)

Kim Gim Kim Gim-Sachan Maz.

Defendant 1 and nine others, the deceased Nonparty 1’s taking-over of lawsuit (Attorney Choi Jong-soo, Counsel for the defendant-appellant)

Defendant 3

Supreme Court Decision 96Da30656 Delivered on December 9, 1997

Jeonju District Court Decision 98Na782 delivered on October 23, 1998

The part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the Jeonju District Court Panel Division. All of the remaining Defendants’ appeals except Defendant 3 are dismissed.

The grounds of appeal are examined.

1. A. According to the reasoning of the lower judgment, the facts established by the lower court are as follows.

On April 18, 1919 and April 25, 1919, the Plaintiff clan was under the trust of Nonparty 2, Nonparty 3, Nonparty 4, Nonparty 5, Nonparty 6, or Nonparty 2, Nonparty 3, Nonparty 4, and Nonparty 5 with respect to the two forest lots owned by the Plaintiff clans prior to the instant division.

As the de facto representative of the Plaintiff clan, Nonparty 1 managed the property of the clan on August 26, 1970 and September 30 of the same year, under the Act on Special Measures for the Registration, etc. of Ownership of Forest Land, which was in force on August 26, 1970 and on September 30 of the same year, completed the registration of ownership transfer under the joint names of Nonparty 1, Nonparty 7, Nonparty 10 and Nonparty 13, respectively, who is the successor of the remaining circumstances except for Nonparty 6 who died without children among the above circumstances.

On December 13, 1986, Nonparty 13 sold 1/4 of the forest of this case to Defendant 4 and completed the registration of transfer of shares in Defendant 4. Nonparty 8, the inheritor of Nonparty 7, sold 1/4 of his share to Nonparty 9 and made the registration of transfer of shares in Nonparty 10 to Nonparty 12 on May 16, 1990. Nonparty 1, the inheritor of Nonparty 10, sold 1/4 of his share to Nonparty 12 and completed the registration of transfer of shares in the name of Nonparty 12 (in addition to the forest of this case, other land owned by the Plaintiff of this case, the registration of transfer of ownership was completed under the joint name of Nonparty 1, Nonparty 9, Nonparty 12 and Defendant 4).

On April 1, 1991, Nonparty 1, Nonparty 9, Nonparty 12, and Defendant 4 agreed on the partition of co-owned forest as to the land on 26 parcels, including the instant forest, and decided to be the sole ownership of Nonparty 1. Accordingly, the shares of Nonparty 9, Nonparty 12, and Defendant 4 as to the instant forest were transferred to Nonparty 1.

B. Based on the above facts, the court below held that the registration of preservation of ownership of the forest of this case was made under the name of Nonparty 1, Nonparty 7, Nonparty 10, and Nonparty 13 was merely changed from the name of the fact-finding to the title trustee, and that Nonparty 1 succeeded to all the status of the title trustee of Nonparty 7, Nonparty 10, and Nonparty 13. The Defendants, the heir of Nonparty 1, the plaintiff of this case, are liable to implement the registration of ownership transfer on the ground of the termination of title trust on the date of delivery of the copy of the complaint of this case according to their respective statutory shares among the forest of this case, and rejected the registration of ownership transfer of the forest of this case under the name of Nonparty 1, Nonparty 7, Nonparty 10, and Nonparty 1, the title trustee of the forest of this case, as the representative of the plaintiff clan, and thus, it is reasonable to view that the registration of ownership transfer of the forest of this case was renewed under the name of Nonparty 1, the title of the defendant 1, the title trustee of this case, as the remaining shares of this case.

2. Plaintiff’s ground of appeal

According to the facts established by the reasoning of the judgment below, it is clear that Nonparty 1, one of the title holders of 26 lots of land, including the forest of this case, has registered the forest of this case as the sole owner by taking the form of being transferred to Nonparty 1 by Nonparty 1, Nonparty 9, Nonparty 12, and Defendant 4, according to the agreement on the partition of co-owned property with Nonparty 3 acquisitors who legally acquired the ownership of one-fourth share of this case, and Defendant 4.

Therefore, although Nonparty 1’s sole possession of the forest land of this case takes the same form as the succession and acquisition of the registration title of the third acquisitors, in substance, it is nothing more than changing the ownership form of the forest land of this case acquired through the division of shares divided on the land of 26 pieces, including the forest land of this case, which was nominal by the Plaintiff clan, and thus, it is nothing more than changing the ownership form. Thus, even if the partition of co-owned property was made regardless of the intention of the Plaintiff clan, the title trust relationship between the Plaintiff clan and Nonparty 1 shall continue to exist as it is (see Supreme Court Decision 86Da215, 86Meu1071, Feb. 24, 1987).

Nevertheless, the court below's rejection of the plaintiff's claim on the premise that the non-party 1 acquired the ownership effective with respect to three-fourths of the forest of this case among the forest of this case, and the title trust relationship was terminated, cannot be deemed to have erred by misapprehending the legal principles on title trust, thereby affecting the conclusion of the judgment. The part pointing this out in the grounds of appeal is with merit.

3. As to the remaining Defendants’ grounds of appeal other than Defendant 3

Examining the reasoning of the judgment below in light of the records, the court below is justified in finding the above facts and ordering the defendants to implement the procedures for ownership transfer registration based on the cancellation of title trust as to 1/4 of shares in the forest of this case, and there is no error in violation of the rules of evidence by determining evidence contrary to the rule of experience. The grounds for appeal cannot be accepted.

4. Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion, and the remaining Defendants’ appeals except Defendant 3 are all dismissed. With respect to the judgment under paragraph (2), except there is a dissenting opinion by Justice Hah-ho, Justice Kim Hon, Justice Kim Hon, and Justice Song Jin-hun as to the judgment under paragraph (2), there is a assent of all participating Justices on the bench.

5. Supreme Court Decision 201Hun-ho, Kim Jong-ho, Lee Jong-soo, and Song Jin-hun decided on the Plaintiff’s ground of appeal on the above 2.2.

If the non-party 1, who was entrusted with the ownership of 1/4 shares of the land within 26 pieces of land, including the forest land in this case, by the plaintiff, transferred one fourth shares of the non-party 1's other land except the forest land in this case (hereinafter "other land except the forest land in this case") in the form of consultation on partition of co-owners with the non-party 9, other co-owners who do not have any title trust relation to the above real estate, to the above non-party 9 and other co-owners, and transferred three fourth shares of the above non-party 9, etc. concerning the forest in this case, the legal relation is limited to the trust shares of the non-party 1 concerning other land, and the non-party 1 disposed of shares. Accordingly, the title trust relation between the plaintiff and the non-party 1 with respect to other land is extinguished, and the trust relation cannot be deemed to exist as it remains as it is. The non-party 1's trust relation with the remaining shares of the forest in this case only 4/100 of the forest in this case.

In the case where the non-party 1 divided the co-owned property in the form of the co-owned property partition in the above 26 pieces of land, and the majority opinion stated that "the co-owned property partition is merely a change in the form of ownership by concentrating it in the forest of this case," the title trust relation with the shares in other land is not a title trust relation with the forest of this case (the shares, the whole or the part) regardless of the will of the clan, which is the title truster. Supreme Court Decision 86Da215, 86Meu1071 Decided February 24, 1987, which is invoked by the majority opinion, decided on February 24, 1987, the "joint trustee of real estate" divided the shares of the specific land of this case into two parcels of land and transferred them to one another, and thus, it cannot be viewed as an act of disposal of real estate extinguishing the title trust relation, and there is no difference in the case where the non-party 1 was not a co-owner in the title trust relation with the forest of this case.

In addition, where the entrusted real estate in the name of the title trustee is transferred to a third party regardless of the intention of the trustee under land expropriation or other similar legal relations, and the compensation, etc. is paid, the relevant compensation, etc. belongs to the title truster in the internal relationship with the title trustee. Thus, even in this case where the act of voluntary disposal by the title trustee was commenced, it cannot be deemed that the title trust relationship existed without the beginning with respect to the forest of this case.

The act of Nonparty 1’s transfer of another person’s shares in the forest of this case to another person in return for the transfer of another person’s shares in trust on the land of this case shall be subject to intentional criticism, and in addition, the act of acquiring another person’s shares in the forest of this case shall be deemed to exist in the forest of this case as it is, and it may be a simple solution method to make another person acquire the registration of transfer of ownership following the termination of the title trust in this case’s forest of this case by deeming that the title trust relationship with other land exists in the forest of this case as it is, and thus, it cannot be accepted as it is contrary to the theory of precedents on the termination of the title trust relationship established through many cases for a long period of time.

Therefore, the judgment of the court below which rejected part of the plaintiff's claim based on the premise that a title trust relationship exists between the plaintiff and the non-party 1 with respect to the entire forest of this case is just, and the plaintiff's appeal against it is without merit.

The Chief Justice Park Jae-ho (Presiding Justice) of the Supreme Court of Justice Park Jong-ho (Presiding Justice)