Seoul High Court-2012-Na17211 (Law No. 19, 2013)

A title truster and a person who has entered into a real estate sales contract shall not be deemed a third party under Article 4 (3) of the Real Estate Real Name Act.

The third party under Article 4 (3) of the Real Estate Real Name Act refers to a person who has a new interest with a title trustee on the basis that the title trustee is a real right holder, and if the title trustee entered into a contract to acquire a real right to real estate with the title trustee and only the title of registration has been made by the title trustee, it does not constitute a third party under the said provision

Article 30 of the National Tax Collection Act Revocation of Fraudulent Act

2013Da37869, cancellation, etc. of registration of initial ownership

-Appellant

Korea

-Appellee

KimAA 2

Seoul High Court Decision 2012Na17211 Decided April 19, 2013

September 12, 2013

All appeals are dismissed.

Costs of appeal shall be borne by each party.

The grounds of appeal are examined.

1. Plaintiff’s ground of appeal

According 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”), when a title truster and a title trustee entered into a contract title trust agreement, and entered into a contract on real estate between a title truster and a title trustee and his/her owner who was unaware of the fact that a title trust agreement was concluded, and the registration of ownership transfer of the relevant real estate is completed in accordance with the said contract, the title trustee, notwithstanding the invalidity of a title trust agreement between the title truster and the title trustee, shall acquire full ownership of the relevant real estate, and is obliged to return unjust enrichment equivalent to the purchase fund provided by him/her to the title truster (see, e.g., Supreme Court Decision 2002Da669

According to the reasoning of the lower judgment, the lower court dismissed the part of the Plaintiff’s first preliminary claim against the Defendants on the ground that the ownership transfer registration of the instant land in the name NaE and changedF was null and void pursuant to the main sentence of Article 4(2) of the Real Estate Explanation Act on the premise that the instant land sales contract was concluded in the form of a three-party contract title trust between KimD and a title trustee, and NaF, and that the seller KimD had different knowledge about the title trust at the time of the said sales contract, and that NA acquired ownership of the instant land pursuant to the proviso of Article 4(2) of the Act on Real Estate Explanation, the lower court dismissed the part of each of the instant real estate, which is the object of the site ownership

In light of the above legal principles and records, the above judgment of the court below is just and acceptable, and there is no error of law by misapprehending the legal principles as to the unity of section for exclusive use and site ownership under the Act on the Establishment of Contracts, Contract Title Trust, and Ownership and Management of Condominium Buildings.

2. As to the Defendants’ grounds of appeal

According to the reasoning of the judgment below, the court below determined that the instant aggregate building is a contract aimed at the new construction of the building, and even if the second industrial development company, the contractor of the new construction of the instant aggregate building, did not know of a title trust agreement between HH and HE, and HF, while actually owning and operating GG construction, which is not a corporation, and HH acquired it as the actual owner, and each of the instant registration of initial ownership in the name of HE, was completed in accordance with the title trust agreement, and thus null and void pursuant to the main sentence of Article 4(2) of the Real Estate Real Name Act.

In light of the relevant legal principles and records, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there is no error of law by misapprehending the legal principles as to bilateral registration title trust, presumption of peculiar property between husband and wife, and title trust between husband and wife.

3. Conclusion

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