If a title trustee has acquired full ownership of the pertinent real estate after the grace period prescribed by the Act on the Registration of Real Estate under Actual Titleholder’s Name had expired from the owner who was unaware of the fact that the title trust agreement was made under the so-called contract title trust prior to the enforcement of the Act on the Registration of Real Estate under Actual Titleholder’s Name (=

According to the provisions of Article 4 (1) and (2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, where a title truster and a title trustee enter into a title trust agreement with the owner who was unaware of the fact that the title trustee was a party to the agreement, and the title trustee enters into a title trust agreement with respect to real estate and completed the registration of ownership transfer under the title trust agreement, notwithstanding the invalidity of the title trust agreement between the title truster and the title trustee, any change in real rights to the relevant real estate by the registration of ownership transfer is considered valid, and the title trustee obtains full ownership of the relevant real estate, and the title truster is subject to Article 12 (1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name before the enforcement of the Act on the Registration of Real Estate under Actual Titleholder’s Name, and even after the expiration of the period without the real name registration within the grace period under Article 11 of the same Act. In such cases, the title truster’s obligation to obtain the relevant real estate under the title trust agreement is not to return the relevant real estate to the title trustee.

Articles 3, 4, 11, and 12 of the Act on the Registration of Real Estate under Actual Titleholder’s Name; Articles 741 and 747 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 16 others (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Plaintiff

Defendant

Seoul High Court Decision 99Na34309 delivered on April 6, 2000

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of any statement in the supplemental appellate brief not timely filed).

1. Regarding ground of appeal No. 1

According to the reasoning of the judgment below, the court below, based on the adopted evidence, recognized the fact that the plaintiff would purchase the real estate of this case newly constructed and sold in the name of the non-party, a newdong Construction Co., Ltd. (hereinafter referred to as "newdong Construction") under the name of the non-party, and entered into a sales contract with the non-party on November 3, 1992 with the buyer as the non-party, and completed the registration of ownership transfer under the name of the non-party on March 16, 1995. The non-party died on July 20, 1997, and the defendant completed the registration of ownership transfer under the name of the non-party on December 13, 1997, and now reached the present status after completing the registration of ownership transfer under the name of the defendant on December 13, 1997 due to inheritance. In light of the records, the court below's above fact finding is acceptable, and there is no violation of law of misunderstanding

2. Regarding ground of appeal No. 2

Based on the above factual basis, the court below held that the plaintiff entered into a contract title trust agreement with the non-party, who was the title trustee, and completed the registration of ownership transfer with respect to the real estate of this case under the name of the non-party, and subsequently, completed the registration of ownership transfer with respect to the non-party under the name of the non-party, but the title trust agreement became null and void pursuant to Articles 4 (1) and 11 of the Act on the Registration of Real Estate under Actual Titleholder's Name (hereinafter "Real Estate Real Name Act"), as the plaintiff did not complete the real-name registration within the grace period under the Act on the Registration of Real Estate under Actual Titleholder's Name. Furthermore, as long as the above title trust agreement between the plaintiff and the non-party becomes null and void as the above title trust agreement becomes null and void, the defendant who acquired the ownership of the real estate of this case from the non-party who acquired the ownership of

According to the provisions of Article 4 (1) and (2) of the Real Estate Real Name Act, where a title truster and a title trustee enter into a title trust agreement with the owner who was unaware of the fact that the title trustee was a party to the agreement, and the title trustee enters into a title trust agreement with respect to real estate and completed the registration of ownership transfer under the title trust agreement, notwithstanding the invalidity of the title trust agreement between the title truster and the title trustee, the change in real rights to the relevant real estate through the registration of ownership transfer is considered valid, and the title trustee obtains full ownership of the relevant real estate (see Supreme Court Decision 98Do4347, Mar. 24, 200). Since the title truster did not obtain the title trust agreement prior to the enforcement of the Real Estate Real Name Act and the change in real rights based thereon within the grace period under Article 11 of the Real Estate Real Name Act and the title trustee did not obtain the title trust agreement within the title trust period, Article 4 of the said Act applies as it is. In this case, the title truster is entitled to full ownership of the relevant real estate before the title trust agreement expires.

In the same purport, the court below's acceptance of the first preliminary claim of this case, which sought the implementation of the procedure for ownership transfer registration based on unjust enrichment on the real estate in this case, is justifiable, and there is no error of law by misunderstanding the legal principles as to the interpretation of the Real Estate Real Name Act

3. As to the third ground for appeal

The defendant alleged in the ground of appeal that the plaintiff et al. withdrawn KRW 70 million from the non-party's deposit passbook and claimed a set-off against the above money, but the court below did not make any decision. The defendant's representative stated the above-mentioned argument on March 9, 200 on the date of the fourth pleading of the court below on March 9, 200, but it is obvious in the record that the defendant's representative stated the legal brief on the above-mentioned argument, but it is deemed that the plaintiff's main or conjunctive claim offsets the claim against the passive claim, so long as the court below rejected all of the monetary claim in this case and accepted only the claim for the execution of the procedure for the registration of ownership transfer, it is just that the court below did not determine the above set-off claim, and there is no violation of law of omission of judgment as otherwise alleged in

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jin-hun (Presiding Justice)