Claimant (Law Firm Taesung, Attorneys Kang Chang-in et al., Counsel for the plaintiff-appellant)

Other party (Law Firm Oyn, Attorney Noh Young-chul, Counsel for defendant-appellant)

Suwon District Court Order 2010Mo1729 dated June 20, 2012

1. The adjudication of the first instance shall be revoked;

2. The other party shall pay 648,949,165 won to the claimant as division of property, and 5% interest per annum from October 5, 201 to June 28, 2013, and 20% interest per annum from the next day to the day of full payment.

3. The total expenses of an adjudication shall be borne individually by each person;

4. Paragraph 2 can be provisionally executed.

The judgment of the court of first instance is revoked, and the other party shall pay to the claimant 682,609,328 won as division of property and 20% interest per annum from the delivery date of the copy of the written appeal of this case to the full payment date.

1. Details of the formation of property;

According to the records and the results of the examination of this case, the following facts are recognized.

A. On July 13, 2011, the claimant and the other party were legally married couple who completed the marriage report on September 27, 1984, and on July 13, 201, “the claimant and the other party shall divorce between the claimant and the other party. The other party shall pay 350,000,000 won to the claimant with the criminal agreement and the amount of division of property. The claimant and the other party shall pay 350,000,000 won to the claimant. The claimant and the other party shall pay 962 square meters (number 1 omitted) of Masan-ri (number 1 omitted) and 962 square meters of Masan-ri (number 1 omitted) prior to that ground reinforced concrete structure and 37.378 square meters of living facilities in the 1st class of the building (hereinafter “the building of this case”).

B. Since the other party married with the claimant, the other party obtained income by continuing to live in the workplace, and the claimant married with the other party and had the other party run the commercial buildings by leasing commercial buildings until 1999 on the basis of money and money that the other party gets to live in the workplace and the claimant gets to do so.

C. On September 11, 1995, non-party 1, who is the other party and the other party, entered into a sales contract with the non-party 2 of the seller and the non-party 1 of the other party 1,760 square meters of the number of 1,760 square meters of the number of the Dong-ri (number 2 omitted), which is to be divided into 1,000 square meters of the number of the non-party 2 of the non-party 1 of the seller, and the non-party 1 of the non-party 1 of the non-party 1 of the non-party 1 of the contract, and the non-party 2 of the non-party 1 of the contract (number 1 of the non-party 2 of the contract) and the non-party 1 of the non-party 1 of the contract (number 1 of the non-party 2 of the contract) and the non-party 1 of the non-party 1 of the contract and the non-party 2 of the passbook 9000,000.

D. Since the land in this case was land within the land transaction permission zone, it meets the requirements for a certain period of time. The seller's non-party 2, non-party 1 and the counter-party 2 did not meet the requirements, while non-party 2's non-party 2's non-party 1 and the counter-party 3 met the requirements. Thus, the non-party 1 and the counter-party 1 made a title trust on the land in this case, and on March 14, 1996, the non-party 1 and the non-party 2 made a claim for the title transfer registration on the land in the non-party 3's name on the non-party 1,760 square meters in the non-party 1,760 square meters in the non-party 1,760 square meters in the non-party 1,760 square meters in the non-party 2,000 square meters in the non-party 1,760 mal.

E. The instant land was divided on December 1, 200 and became 962 square meters prior to the Masan-ri (number 1 omitted), Masan-si (hereinafter “instant land”). The instant land was expropriated in the Korea Land Corporation, and Nonparty 1 was compensated for KRW 2,595,796,660 as compensation for the instant land on June 11, 2009.

2. Object of division of property;

According to the above facts, the subject of division of property in this case is the claim listed in the attached list.

3. The parties' assertion and judgment

A. The claimant's assertion and judgment

(1) The claimant asserts that "the claimant and the other party invested 1/4 of the cost of building construction of the building of this case, and the claimant and the other party entrusted only 1/4 equity right holders of the building of this case or their names to non-party 1, and thereafter, the building of this case was accepted. Thus, since the building of this case was accepted, 67,320,325 won (269,281,300 won x 1/4) out of the cost of expropriation of the building of this case shall also be subject to division of property."

(2) 살피건대, 소갑 제3호증의 1, 소갑 제5호증의 2, 3, 소을 제1호증의 각 기재에 의하면 청구인의 통장에서 청구외 1에게 2004. 3. 23. 30,000,000원, 2004. 4. 19. 10,000,000원, 2004. 11. 30. 10,051,600원 합계 50,051,600원이 송금된 사실, 청구외 1은 위 금원을 이 사건 건물을 신축하는 용도로 사용하였고, 이 사건 건물을 신축한 후 수원지방법원 화성등기소 2004. 12. 4. 접수 제137307호로 이 사건 건물에 대한 청구외 1 명의의 소유권보존등기를 경료한 사실, 이 사건 건물은 한국토지공사에 수용되어 청구외 1은 2009. 9. 28. 이 사건 건물의 수용보상금으로 269,281,300원을 보상받은 사실을 인정할 수 있으나, 이 사건 기록 및 심문 전체의 취지를 종합하면 청구외 1이 청구외 1의 비용으로 화성시 목탄면 목리 (지번 3 생략) 지상 건물(이하 ‘이 사건 목리건물’이라고 한다)을 지어 2007. 9. 7. 상대방 명의로 소유권보존등기를 경료 하여 준 사실이 인정되는 바, 이는 청구외 1이 청구인과 상대방으로부터 받은 50,051,600원에 대하여 이 사건 목리건물을 신축하여 주는 방법으로 변제한 것이라고 보이므로(이에 대하여 ① 청구인은 “이 사건 목리건물은 청구외 1이 그 명의만 상대방에게 신탁해 둔 것”이라고 주장하나 이를 인정할 증거가 없으며, 오히려 이 사건 목리건물은 한국토지공사에 수용되어 상대방이 2009. 10. 20. 75,336,130원을 보상받아 이미 청구인과 상대방 사이에서 재산분할 대상이 되었다는 점에서 이 사건 목리건물은 상대방의 소유였다고 봄이 상당하고, ② 청구인은 “이 사건 목리건물의 소유자가 상대방이라고 하더라도, 청구인과 상대방은 이 사건 건물을 임대하여 얻은 수익 중 1/4지분에 해당하는 금원을 청구외 1로부터 받을 권리가 있었는데 청구외 1이 이를 지급하지 아니하다가, 이 사건 건물이 보존 등기된 2004. 12. 4.부터 이 사건 건물에 대한 보상이 이루어진 때인 2009. 9. 28.까지의 약 3년간의 임대수입 중 청구인과 상대방의 몫을 이 사건 목리건물을 상대방 명의로 신축하여 줌으로써 지급한 것이지, 청구외 1이 이 사건 목리건물로서 청구인과 상대방에 대한 대여금을 변제한 것은 아니다”라고 주장하나, 앞서 인정한 바와 같이 이 사건 목리건물이 신축되어 상대방 명의의 보존등기가 된 시점은 2007. 9. 7.이므로, 이 사건 건물에 대한 청구인과 상대방의 3년간의 임대수입을 이 사건 목리건물로 갚았다고 보기는 어렵고, 달리 청구인의 주장을 인정할 증거가 없다), 이에 비추어 보면 청구인 명의의 통장에서 청구외 1에게 위 50,051,600원이 송금되었다는 사실만으로는 위 금원의 성질이 대여금이 아니라 이 사건 건물에 대한 투자금이라는 점을 인정하기 어렵고, 달리 이를 인정할 증거가 없으므로 청구인의 이 부분 주장은 이유 없다.

B. The other party's assertion and judgment

(1) The other party asserts that “If the other party bears 1/2 of the purchase fund of this case and is a 1/2 equity right holder of the land of this case, this would eventually be held in title trust in the form of a contract title trust with the other party 1/2 shares of the land of this case. Thus, since the other party 2 was aware of this fact, it constitutes a seller’s nominal trust, the other party is entitled to claim a return of the amount equivalent to the purchase price paid to the other party 1 as unjust enrichment, and the right to claim a return of unjust enrichment equivalent to the above purchase price can only be claimed for a return of unjust enrichment, and the right to claim a return of unjust enrichment of the above purchase price has become extinct after the lapse of 10 years from April 20, 1996, which was the date of conclusion of the contract of transfer of ownership with respect to the land of this case.”

(2) First, examining the legal nature of title trust with respect to the instant land, whether a title trust agreement is a three-party registered title trust or a contract title trust is determined by the contracting party. Even if a contracting party is deemed a title trustee, if the contracting party can be deemed a title truster, it would be a three-party registered title trust. Therefore, if a title truster, not a title truster, who is a contracting party, has entered into a contract with the intent to directly bring about the legal effect of the contract to the title truster, then the title truster is deemed a contracting party. Thus, the title trust relationship in this case should be deemed a three-party registered title trust (Supreme Court Decision 2010Da52799 Decided October 28, 2010). In full view of the testimony and arguments and the purport of the entire arguments of the testimony and arguments of the parties other than the party’s request for witness at the trial, Nonparty 1, at the time of paying intermediate payment pursuant to the instant land sales contract to Nonparty 2, the counter-party to the instant land, claiming for the purchase of the instant land, and the counter-party 2.

(3) In a three-party registered title trust, the title truster’s obligation to transfer ownership to the title truster is null and void, and as a result, the title truster returns to the title truster’s ownership. As such, the seller is still entitled to seek cancellation of the registration in the name of invalid title trustee. Meanwhile, as a sales contract between the seller and the title truster still remains valid, the title truster may file a claim for the registration of ownership transfer under the sales contract with the seller. However, in cases where the registration of ownership transfer is completed in the name of a third party purchaser due to compulsory expropriation, consultation on public land acquisition, etc., barring any special circumstance, the third party purchaser is legally entitled to the ownership (Article 4(3) of the Act on the Registration of Real Estate under Actual Titleholder’s Name). Accordingly, the seller’s obligation to transfer ownership to the title truster is impossible, and as a result, the title truster suffers loss of the right to transfer ownership of the trusted real estate, while the title trustee is obligated to return the other party’s profit to the title truster’s unjust enrichment (see Supreme Court Decision 2009Da4193929, Sept. 8, 201).

4. Ratio and method of division of property;

(a) Ratio of division of property: 50% of the claimant, 50% of the other party;

In full view of all the circumstances such as the Claimant and the other party’s contribution to the acquisition, formation, and maintenance of the property subject to division as seen earlier, the process, period, and distress of marital life, the age of the Claimant and the other party, the occupation, income, and livelihood of the Claimant and the other party, it is reasonable to determine the division ratio of property in this case to 50% of the Claimant

(b) Methods of division of property;

In full view of all the circumstances, such as the title and form of ownership of the instant property subject to division, acquisition and maintenance details, convenience of division, etc., the claims subject to division shall vest in the other party, and as a result, it is reasonable to pay the amount to be ultimately reverted to the claimant according to the ratio of division of property.

5. The amount payable as the division of property;

Therefore, the other party is obligated to pay 648,949,165 won (i.e., 1,297,898,330 won x 50%) to the claimant and 5% per annum under the Civil Act from October 5, 2011 to June 28, 2013, which is the day following the delivery of a copy of the instant petition for trial, and 20% per annum under the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the day of full payment.

6. Additional entry of a declaration of provisional execution;

The right to claim division of property under the Civil Act arises only when one of the parties to a divorce has a right to claim division of property against the other party, and the divorce has been established at the time of the establishment of the divorce. As such, the divorce judgment has not become final and conclusive even in cases where the parties to a divorce lawsuit jointly with the divorce lawsuit prior to the establishment of divorce and the court rendered a judgment ordering division of property at the same time, provisional execution cannot be allowed at that time (Supreme Court Decision 98Meu1193 Decided November 13, 1998). However, as long as the marital relationship has already been terminated between the parties prior to the judgment on division of property, the right to claim division of property has occurred at the time when the marital relationship was terminated, and as long as the other party has already received a claim for division of property, it shall be ordered to attach provisional execution to the other party’s claim for division of property, and Article 42(1) of the Family Litigation Act may order the other party to seek division of property at the same time as the other party’s counterclaim and the family non-litigation case (Article 28(13).).

7. Conclusion

Therefore, as above, the above-mentioned decision on the claimant's claim for division of property is reasonable, and the judgment of the court of first instance is unfair, and it is so decided as per Disposition by the assent of all participating Justices.

[Attachment]

Judge Jeong Jong-won (Presiding Judge)

1) As long as the title trust of the instant land is deemed to be a three-party registered title trust, the other party’s assertion that the claim for return of unjust enrichment equivalent to the purchase price has expired under the premise that the title trust is a contract title trust need not be examined.