2014 Gohap 16162 Demurrer

A

B

November 26, 2014

December 17, 2014

1. The plaintiff's claim is dismissed.

2. This Court revokes a ruling of the suspension of compulsory execution made on February 18, 2014 with respect to a case of application for the suspension of compulsory execution 2014 Chicago1004.

3. The costs of lawsuit shall be borne by the Plaintiff.

4. Paragraph 2 can be provisionally executed.

The defendant shall not be subject to compulsory execution against the real estate listed in the attached list based on the executory payment order of the lawsuit for demanding construction price claim No. 2013j404 against the Ulsan District Court.

1. Basic facts

A. Conclusion of a sales contract

(1) On October 2012, the Plaintiff agreed to purchase D and the real estate listed in the separate sheet from D (hereinafter “instant land”) and the purchaser as C with the consent of C.

(2) According to the above agreement, the Plaintiff: (a) transferred D the purchase price of KRW 20 million around 26,00,000 to D; and (b) paid KRW 10 million around 29,000,000 to D’s loan of KRW 95 million; (c) around November 8, 2012, the Plaintiff drafted a sales contract with KRW 120,000 for D and this case’s land (hereinafter referred to as “the sales contract in this case”); and (d) completed the ownership transfer registration (hereinafter referred to as “ownership transfer registration”) in the name of Ulsan District Court No. 117521, Dec. 12, 2012.

(3) The Plaintiff holds a certificate of right to registration of the instant land, and bears the registration expenses related to the said sale, and the expenses related to the development and utilization of groundwater of the instant land.

B. Conclusion of a construction contract

(1) Around October, 2012, the Plaintiff agreed to newly construct the instant inspection (hereinafter referred to as “instant inspection”) on the instant land with the Defendant, who is a construction business entity, and on March 18, 2013, the Defendant drafted a construction contract agreement between C and C to newly build the E neighborhood living facilities on the instant land (hereinafter referred to as “the instant construction contract agreement”). On March 18, 2013, the contractor shall be the owner of the instant land and the contractor shall be the contract amount of KRW 200,00,000 (value added tax separate) with the contractor as the Defendant.

(2) Around May 2013, the Plaintiff: (a) obtained a building permit for the instant temple construction project by designating C as the owner; and (b) the Defendant received necessary expenses, etc. for the preparation of construction from the Plaintiff; and (c) commenced construction of the instant temple from May 2013 to May 2013.

(3) On May 1, 2013, the Defendant entered into a subcontract with F to the effect that the instant inspection was subcontracted to F with the labor parts, food collection, and equipment parts during the construction of the instant inspection.

(4) On June 27, 2013, the Defendant drafted a modified contract (hereinafter “instant modification contract”) stating that the total floor area, walls structure, toilets number, windows, etc. of the instant construction contract shall be modified and the construction cost shall be increased to KRW 255,00,000 (excluding value-added tax) shall be KRW 255,00.

(5) By September 2013, the Defendant and subcontractors, including F, and carried out a structural construction project and part of the instant temple construction project.

(6) On September 7, 2013, the Defendant agreed to suspend construction with the Plaintiff, and written a written agreement on the settlement of accounts between C and C, setting forth KRW 168,270,000 as the amount of settlement of accounts (hereinafter “each of the instant agreements”).

(7) Since then, the Plaintiff had F perform the construction work, and F had the construction work paid directly by the Plaintiff and completed the construction work of the instant temple. An order for payment and compulsory auction.

(1) On October 4, 2013, the Defendant filed an application against C for a payment order claiming payment of the amount of 168,270,000 won for the settlement of construction price under each of the instant orders, and damages for delay at the rate of 20% per annum from the day following the day on which the payment order was served. The payment order was served on C on October 4, 2013, and became final and conclusive on October 19, 2013. (2) On October 8, 2013, the Defendant seized the instant land as the title of the instant payment order with the Ulsan District Court 2013Kahap804 on October 8, 2013. The Defendant applied for a compulsory auction and filed for a compulsory auction and completed the registration of compulsory auction order on the instant land to G on November 6, 2013.

(3) On February 13, 2014, the Plaintiff filed the instant lawsuit on the ground that C is not the owner of the instant land, and filed an application for a decision to suspend compulsory execution with respect to the instant land with the court 2014Kagro 1004, and subsequently accepted the application on February 18, 2014.

(d) Related cases;

(1) On December 17, 2013, the Plaintiff filed a lawsuit against C seeking the cancellation of ownership transfer registration against C and the seller D seeking the registration of ownership transfer pursuant to the instant sales contract on the grounds that the ownership transfer registration of the instant land in the name of C was completed by title trust, and the judgment became final and conclusive on September 25, 2014, by fully accepting the Plaintiff’s claim in the instant lawsuit.

(2) On April 21, 2014, the Plaintiff filed a complaint with the Defendant and C with the purport that even though the true owner of the instant land was well aware that he/she was the Plaintiff, the Defendant and C conspired with each other to confirm the instant payment order based on the false contract price claim and to obtain it by filing an application for a compulsory auction on the instant land. However, the Ulsan District Prosecutors’ Office filed an application for the payment order with C on September 5, 2014, which is the construction business operator, to which the Defendant, the owner of the instant land

The defendant and C were not subject to a non-prosecution disposition on the ground that compulsory execution is not fraudulent.

【In the absence of dispute, Gap's evidence Nos. 1 through 22 (including each number), Eul's evidence Nos. 1 through 17, witness F, Eul's testimony, the overall purport of pleading (the plaintiff's evidence Nos. 1, 4, 7-2, 3, 10, 11, 13, 17-2, 3, and 10 are written to the effect that the authenticity of the evidence Nos. 1, 4, 7-2, 3, and 17 is disputed, and all of the evidence Nos. 1, 4, 7-2, 3, and 10 are affixed with the seal of the defendant, and the authenticity of the evidence Nos. 11, 13, and 17 are all prepared by the defendant, and it is acknowledged that the defendant's appeal is not reasonable).

2. The parties' assertion

A. The plaintiff

(1) The Plaintiff purchased the instant land from D and held title trust with C only the registered title. As such, C is merely a title trustee of the instant land, and accordingly, C’s registration of transfer of ownership with respect to the instant land is null and void pursuant to Article 4(1) and (2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”).

(2) The Defendant concluded a construction contract with the Plaintiff for the new construction of the instant temple verbally, and thereafter, the Defendant paid approximately KRW 83,000,000 to the Defendant until the discontinuance of the new construction of the instant temple, and paid the Defendant the construction price in full. As such, the Defendant did not have any claim for the construction payment against the Plaintiff.

(3) Nevertheless, the Defendant, as a title trustee, conspired with C who has no authority over the instant temple-built construction work, prepared the instant construction contract, modified contract, and written notes, and made external appearance such as the claim for construction payment against C, and applied for a payment order and applied for a compulsory auction for the instant land, and thus, the Defendant’s compulsory execution is null and void. The Defendant does not constitute a third party under Article 4(3) of the Real Estate Real Name Act.

(4) Therefore, the Defendant does not constitute a third party who is unable to oppose the invalidity of title trust. Therefore, the ownership of the instant land is deemed to have returned to D according to the invalidation of a title trust agreement. Therefore, the Defendant’s compulsory execution against the instant land based on the Defendant’s executive title against C should be dismissed.

B. The invalidity of the Defendant’s title trust cannot be set up against a third party. The Defendant is a creditor holding a claim for the construction price in accordance with the instant construction contract, modified contract, and each letter entered into with C, and accordingly, applied for a compulsory auction against the instant land under the instant payment order, and constitutes a third party who cannot set up against the invalidity of the title trust.

2. Determination on the cause of the claim

A. Relevant legal principles

(1) A lawsuit of demurrer by a third party against a compulsory execution under Article 48 of the Civil Execution Act is seeking the exclusion of enforcement by asserting that the subject matter of execution already commenced has a right to prevent the transfer or delivery of the ownership and other subject matter, and thus, the right constituting the cause of the lawsuit shall be able to oppose the execution creditor (see, e.g., Supreme Court Decision 2007Da7409, May 10, 2007).

(2) Meanwhile, according to Article 4(3) of the Real Estate Real Name Act, the invalidation of a title trust agreement and any change in real rights to real estate that was registered pursuant to the title trust agreement cannot be asserted against a third party. Here, the "third party" is a party to a title trust agreement and a person other than a general successor,

Based on this, not only a person who has entered into a new interest directly with him but also a creditor of seizure or provisional seizure, including a creditor of seizure or provisional seizure, but also does not inquire in good faith (see, e.g., Supreme Court Decision 9Da56529, Mar. 28, 2000).

(3) According to the facts acknowledged earlier, it is reasonable to deem that there was a so-called three-party title trust agreement between the Plaintiff and C. Thus, registration of transfer of ownership in the name of C on the instant land is invalid under Article 4(1) and (2) of the Real Estate Real Name Act and its ownership is in principle returned to D, the original seller. However, according to the relevant legal principles as seen above, since the Defendant, who applied for provisional attachment and compulsory sale of the instant land on the basis that the title trustee is the owner of the instant land, was a third party who could not oppose the invalidity of title trust, the Plaintiff could not assert that the instant land was owned by D in subrogation of the Plaintiff.

(4) However, if the defendant, as alleged by the plaintiff, did not have any claim against C, created the appearance of a false claim in collusion with C, and based on the fact that C was registered as its owner, it is reasonable to deem it as null and void due to an anti-social act that cannot be protected by the law (see Supreme Court Decision 96Da14494, Jun. 14, 1996). Under the following, whether the defendant has a claim against C, and whether the defendant's compulsory execution against C can be deemed null and void by anti-social act.

B. Whether the Defendant constitutes a third party under Article 4(3) of the Real Estate Real Name Act

(1) Defendant C’s claim

A) The Plaintiff asserts that the Plaintiff entered into a contract for the construction of the instant temple with the Defendant, and C is merely a contractual name, and the Defendant does not have any claim for construction payment against C.

B) We examine the following circumstances, which are acknowledged by comprehensively taking into account the purport of the entire pleadings as a whole of the arguments, i.e., ① the witness C prepared the instant modified contract in accordance with the Plaintiff’s instruction and testified to the effect that the content of the contract was ambiguous; ② the Defendant paid KRW 19,535,500 to the Plaintiff for oil expenses, meal expenses, etc. According to the evidence No. 17, the Defendant appears to have been aware that the Plaintiff was the party to the instant construction contract; ③ the Defendant stated that H, together with the Defendant, was aware of the Plaintiff as the party to the instant construction contract in the relevant criminal case, was aware of the Plaintiff in the relevant construction contract; and, therefore, it is reasonable to deem that the Defendant was a party to the instant construction contract, and C, the contracting party, as the title holder, was a title trustee of the instant land, and only lent the name for concluding the instant construction contract to the Plaintiff, not a title holder C. Therefore, the party to the instant construction contract.

C) Accordingly, the defendant can only claim against the plaintiff who is the party to the contract of this case as the party to the contract of this case, and merely can not claim against the plaintiff who is not the party to the contract of this case as the nominal owner. Thus, the defendant does not have the right to claim against C for a compulsory auction against the land of this case since it is not a party to the contract of this case as the nominal owner (or, however, it seems that the defendant is a simple nominal owner and the actual contracting party was well aware of the fact that C is the plaintiff, and thus, it is not possible to establish the liability of the nominal owner under Article 24 of the Commercial Act). (2) Whether the defendant's compulsory execution against C was made by anti-social acts or not, even though the defendant did not have the right to claim against C, even though he did not have the right to claim against C, it is a false construction contract of this case, modified contract, and written a written form, and applied for a compulsory auction against

B) In light of the following circumstances, which are acknowledged by comprehensively taking into account the purport of the entire arguments in each of the above evidence, it shall not be deemed that the Defendant conspired with C to acquire the land of this case with the intent of acquiring the land of this case, creating the appearance of a false contract claim, and establishing the payment order of this case cannot be deemed as a compulsory execution against the land of this case. The Defendant determined that it is reasonable to seek the payment order against C as the contractor in the construction contract of this case and the modified contract, and the letter, etc. prepared according to the intent of the Plaintiff, and therefore, it shall be deemed that the Defendant applied for the payment order of this case, and accordingly, applied for compulsory execution against the land of this case registered as the owner by C. Therefore, the compulsory execution of this case cannot be deemed as an anti-social act

① In light of the fact that the instant construction contract and the instant modified contract were drafted on March 18, 2013 and June 27, 2013, respectively, respectively, and each date of preparation differs, and the stamp image of the seal affixed to each contract differs from the amount of the construction contract, the amount of the construction contract differs, and the details of the modified construction contract are specified in detail, etc., it is difficult to deem that each of the instant contracts was made by an ex post facto public tender with the Defendant and C as false at a time.

② The witness C testified that he did not know the written contract of the instant construction work and that the modified contract was affixed with the direction of the Plaintiff. If the witness C conspired with the Defendant and prepares both the written contract of the instant construction work and the modified contract in collusion with the Defendant, it seems that there is no reason to testify otherwise on the two contracts (in light of the difference between the witness C’s testimony and each seal affixed to the instant work contract of the instant construction work and the instant modified contract, the instant work contract of the instant construction work are written directly with the Defendant using the seal received by the witness C.).

③ In light of the fact that H, together with the Defendant, directly prepared each of the instant reports in the relevant criminal cases, and stated that the Plaintiff and the Plaintiff’s husband were the husband at the time of the formation of the instant report, and that C testified that the Plaintiff had never existed at the time of the formation of the instant report, and that he/she was given testimony that he/she, the Defendant, and H had been instructed by the Plaintiff at the time of the formation of the instant report, it is difficult to view that each of the instant reports was false in collusion with the witness C to acquire the instant land regardless of the Plaintiff’s intention.

④ Each of the instant statements states that the progress payment that the Plaintiff paid to the Defendant is KRW 50,00,000. In light of the fact that: (a) according to the evidence Nos. 17, the amount used for the instant statements is recognized as constituting 19,535,500 won; (b) thus, the Plaintiff excluded the above KRW 19,535,500 from the amount claimed by the Defendant that the Plaintiff paid to the Defendant; (c) thereby, the amount of KRW 19,535,500 would be KRW 63,464,50; and (d) it is difficult to deem that the adjusted amount under each of the instant statements would be an unreasonable amount calculated without considering the Plaintiff’s advance payment at all; and (d) in this respect, it is difficult to deem that each of the instant statements was made in collusion with the Defendant and C.

(5) The plaintiff asserted that the defendant did not entirely carry out the new temple construction work of this case and that F performed all the construction work of this case. However, the defendant subcontracted labor parts to F in performing the new temple construction work of this case. Even if F actually carried out the new temple construction work of this case, this is in accordance with the above subcontract, and it cannot be deemed that the defendant did not actually carry out the new temple construction work of this case, and according to the each statement in the evidence No. 13, it seems that the defendant carried out considerable progress before suspending the construction work of this case.

④ Defendant and C received a non-prosecution disposition to the effect that the Plaintiff, in collusion with Defendant and C, would not be recognized as having committed a crime of conspiracy and fraud in the relevant criminal cases that filed a complaint with Defendant and C to acquire the instant land by filing an application for a compulsory auction on the instant land by confirming the payment order using it.

7) From the perspective of ordinary person such as the defendant, when filing a lawsuit seeking the payment of the construction cost, it is ordinary to file the lawsuit against the holder of the title deed, which is written as the contractor for the construction contract, and it is difficult to expect the lawsuit against the actual party, not the holder of the title deed, by recognizing the legal principles that the actual party, other than the holder of the title deed, bears the obligation. In light of this, it is difficult to view that the defendant's application for the payment order against the witness C, not the plaintiff who is the actual party to the construction contract of this case, but the contract of this case and the modified contract of this case.

(3) Sub-decisions

A) Although the defendant did not have a claim against C, he applied for a payment order of this case against C, and thereby did so for a compulsory auction on the land of this case. However, in a third party's objection lawsuit, it cannot be contested as to the existence of enforcement claim. Thus, unless C does not exclude the enforcement force of the payment order of this case, such as filing a lawsuit of objection against the defendant and accepting the lawsuit, the defendant can enforce compulsory execution on the land of this case registered as the owner of the above payment order, and there is no circumstance to deem that such compulsory execution by the defendant constitutes an anti-social act.

B) If so, the Defendant is deemed to be a third party who cannot oppose the invalidity of title trust under Article 4(3) of the Real Estate Real Name Act. Thus, the Plaintiff cannot seek to deny the compulsory execution of this case on the premise that the title trust of this case is null and void by asserting that the land of this case is owned D.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge and deputy judge;

Judges Choi Jae-won

Judges Kim Jae-sung

A person shall be appointed.