2018Da280316 Registration of transfer of ownership

Plaintiff

Law Firm Hosung, Counsel for the defendant-appellant

[Defendant-Appellant]

Defendant

Law Firm member

[Defendant-Appellee]

Suwon District Court Decision 2018Na55227 Decided October 4, 2018

on June 3, 2021

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 even if the plaintiff received the "right to claim for the transfer registration of ownership based on the cancellation of title trust" on the land of this case from ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ (hereinafter "the clan of this case"), the defendant did not have any consent thereto and there is no reason to respond to the plaintiff's claim for the transfer registration of ownership of this case, on the grounds as stated in its reasoning, the legal principles on the transfer restriction on the right to claim the transfer registration of ownership arising from the sale do not apply to the transfer of the right to claim the transfer of ownership of the clan of this case. Therefore, the court below rejected the defendant's assertion that

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/her own name unless there is an agreement on the transfer of real estate, and the final transferee is required to have an agreement between the first transferor and the final transferee in addition to the agreement between the first transferor and the interim transferee on the interim omission registration, in order to exercise the first transferor's right to claim the transfer transfer registration by agreement on the interim omission registration. Therefore, even if the last transferee received the right to claim the transfer registration by the interim transferee, if the first transferor does not consent to the transfer, the last transferee may not request the first transferor to implement the transfer registration procedure on the ground of the transfer of ownership (see, e.g., 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. Therefore, even if a real estate title truster transferred the right to claim ownership transfer registration based on the termination of a title trust agreement to a third party after the termination of the title trust agreement, if the title trustee did not consent to or consent to such transfer, the transferee may not directly file a claim for ownership transfer registration against the title trustee on the ground that the title truster

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 clan of this case asserted that "the co-defendant 1 and co-defendant 2 of the first instance trial against the defendant and the co-defendant 2 of the first instance trial against the land of this case." The clan of this case claimed that "the title trust agreement is terminated by delivering a copy of the complaint," and filed a lawsuit to seek the implementation of the procedure for ownership transfer registration as a result of termination of title trust (U.S. District Court's branch court's branch court's 2016Gahap5084). On April 26, 2017, Suwon District Court's branch court's branch court declared that the claim of the clan of this case was accepted by a non-litigation judgment pursuant to Article 257 of the Civil Procedure Act, and the above judgment became final and conclusive around that time (hereinafter referred to as "final judgment of the

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 transfer of ownership based on the cancellation of title trust with respect to 1/3 shares out 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 ownership transfer registration based on the termination of the title trust, insofar as the Defendant, the title trustee, did not consent to or consent to the transfer, the Plaintiff may not directly request the Defendant to implement the title transfer registration procedure based on the termination of the title trust under the name of the Plaintiff.

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 to the Plaintiff 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 termination of title trust” and the agreement on the omission of the intermediate registration, thereby

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 and purchase does not apply to the transfer of the right to claim for ownership transfer registration due to the completion of the acquisition of real estate, and it is inappropriate to invoke the instant case differently.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices

Justices Lee Ki-taik

Justices Park Jung-hwa

Justices Kim Jong-soo

Justices Noh Tae-ok