In a case where a real estate title truster terminated a title trust agreement and transferred “the right to claim ownership transfer registration based on the cancellation of the title trust to a third party,” but the title trustee did not consent to or consent to the transfer, whether the transferee may directly file a claim against the title trustee (negative)

In the event that real estate was transferred before the transfer, the final transferee cannot directly request the first transferor to register the ownership transfer under his name unless there is an agreement on the intermediate omission registration, and the final transferee is required to have an agreement between the first transferor and the last transferee on the interim omission registration, in order to exercise the right to claim the ownership transfer registration directly to the first transferor on the grounds of an agreement on the intermediate omission registration. Therefore, if the last transferee does not consent to the first transferor even if he received the right to claim the ownership transfer registration from the intermediate transferor, the final transferee cannot request the first transferor to implement the procedure for ownership transfer registration on the grounds of the transfer of ownership, if the last transferee does not consent to the first transferor.

The foregoing legal doctrine applies to cases where a title truster terminated a valid title trust agreement on real estate and transfers the right to claim ownership transfer registration based on such agreement to a third party after the title truster terminated the title trust agreement. Therefore, even if the title truster transferred the “right to claim ownership transfer registration based on the cancellation of the title trust” to a third party, if the title trustee did not consent to or consent to the transfer, the transferee may not directly file a claim for ownership transfer registration against the title trustee

Articles 186, 449, and 450(1) of the Civil Act

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

Plaintiff (Law Firm Hosung, Attorneys Im Young-young et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm member, Attorneys Lee In-hee et al., Counsel for defendant-appellant)

Suwon District Court Decision 2018Na55227 decided October 4, 2018

The judgment of the court below is reversed, and the case is remanded to Suwon District Court.

The grounds of appeal are examined.

1. The judgment of the court below

The court below rejected the defendant's assertion that the plaintiff did not have any reason to respond to the plaintiff's claim for the registration of transfer of ownership based on the cancellation of title trust, even if he received the "right to claim for the registration of transfer of ownership based on the cancellation of title trust" with respect to the land of this case from the clan (hereinafter "the clan of this case"), on the ground that the legal principles on the restriction on the transfer of the right to claim the registration of transfer of ownership due to sale do not apply to the transfer of the right to claim for the registration of transfer of ownership of this case on the ground that the transfer of the clan of this case does not apply to the transfer of the right to claim the registration of transfer of ownership

2. Judgment of the Supreme Court

A. In a case where real estate was transferred by a transfer of real estate, the final transferee cannot directly request the first transferor to register the ownership transfer under his own name unless there is an agreement on the transfer of real estate. In order to exercise the first transferor's right to directly the right to claim the transfer registration on the ground of an agreement on the transfer of real estate, the final transferee is required to have an agreement on the omission of the intermediate registration, i.e., the first transferor and the final transferee, in addition to the agreement between the first transferor and the intermediate on the interim omission registration. Therefore, even if the final transferee received the right to claim the transfer registration from the intermediate transferor, if the first transferor does not consent to the transfer, the final transferee cannot request the first transferor to implement the transfer registration procedure on the ground of the transfer of ownership (see Supreme Court Decision 97Da485, May 16, 1997

This legal doctrine applies to cases where a title truster terminated a valid title trust agreement on real estate and transfers the right to claim ownership transfer registration based on such agreement to a third party after the title truster terminated the title trust agreement. Therefore, even if the title truster transferred the “right to claim ownership transfer registration based on the cancellation of the title trust,” if the title trustee did not consent or consent to the transfer, the transferee may not directly file a claim for ownership transfer registration against the title trustee on the ground that the title truster acquired

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) On December 22, 1972, the Defendant and the co-defendant 1 and co-defendant 2 of the first instance trial completed the registration of ownership transfer on the instant land, which is farmland, 1/3 shares, respectively.

2) On January 29, 2016, the instant clan claimed against the Defendant and the co-defendant 1 and 2 of the first instance trial against the co-defendant 2 of the first instance trial that “this case is a title trustee with respect to the instant land, and the instant clan shall terminate the title trust agreement by delivering a copy of the complaint.” The instant clan filed a lawsuit (No. 2016Gahap5084) seeking the implementation of the procedures for the registration of ownership transfer on the grounds of termination of title trust (No. 2016Gahap 5084, Suwon District Court’s Branch Branch Branch Branch Branch). On April 26, 2017, Suwon District Court rendered a judgment accepting the claim of the instant clan as a non-divated judgment pursuant to Article 257 of the Civil Procedure Act, and the said judgment became final and conclusive around that time (hereinafter referred to as “final judgment

3) The instant clan concluded a sales contract to sell the instant land to the Plaintiff on July 1, 2017 without completing the registration of ownership transfer in accordance with the final judgment of the previous case.

4) On March 14, 2018, Co-Defendant 1 and Co-Defendant 2 of the first instance trial completed the registration of ownership transfer on the ground of “sale on January 2, 2018,” with respect to each one-third share of the instant land in their names,” among the Plaintiff.

5) On May 3, 2018, the instant clan transferred to the Plaintiff the “right to claim for the registration of transfer of ownership based on the cancellation of title trust with respect to 1/3 of the instant land,” which the said clan holds against the Defendant, and granted the authority to notify the assignment of rights.

6) On May 16, 2018, the Plaintiff sent a notice on the assignment of claims to the Defendant, and at that time, the notice reached the Defendant.

7) The Plaintiff sought against the Defendant a procedure for the registration of ownership transfer in the name of the Plaintiff with respect to the portion of 1/3 of the instant land, but the Defendant rejected.

C. Examining these facts in light of the legal principles as seen earlier, even though the instant clan, the title truster, terminated the title trust agreement with the Defendant, and transferred the Plaintiff the “right to claim for the registration of ownership transfer based on the cancellation of the title trust,” the Plaintiff cannot directly claim against the Defendant for the implementation of the “registration procedure for ownership transfer based on the cancellation of the title trust” under the name of the Plaintiff, unless the Defendant, the title trustee, consented to or consented to the transfer.

Nevertheless, on the grounds indicated in its reasoning, the lower court determined that the Defendant was liable to implement the procedure for ownership transfer registration for one-third share of the instant land on the ground of termination of title trust. In so determining, the lower court erred by misapprehending the legal doctrine on the transfer of “right to claim ownership transfer registration based on the cancellation of title trust” and the agreement on the omission of the intermediate registration, thereby adversely affecting the

Supreme Court Decision 2015Da36167 Decided July 12, 2018 cited by the lower court is that the legal doctrine on the restriction on transfer of ownership due to sale does not apply to the transfer of the right to claim ownership transfer registration due to the completion of the acquisition by prescription of real estate, and it is inappropriate to invoke the instant case as different from the instant case.

3. Conclusion

Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices

Justices Lee Ki-taik (Presiding Justice)