[1] In the so-called contract title trust, whether the title truster can exercise the right of retention on the basis of the right to claim a return of unjust enrichment equivalent to the purchase price held against the title trustee (negative)

[2] In a case where the possessor has a legitimate title of possession, such as a contractual relationship, at the time of disbursement of the beneficial expenses, whether to reimburse the expense or the value increase in value (=legal provisions or legal principles governing the contractual relationship)

[1] In a case where a title truster and a title trustee entered into a so-called contract title trust agreement, and the title trustee entered into a contract on real estate with the owner who was unaware of the fact that the title trust agreement was concluded, and completed the registration of ownership transfer under the name of the trustee, the title truster and the title trustee would be null and void, but the title trustee would not acquire the ownership of the pertinent real estate from the beginning, while the title truster could have a right to claim a return of unjust enrichment equivalent to the amount of money against the title trustee, in a relationship where the funds for purchase of real estate provided to the title trustee would have no legal ground under the invalid title trust agreement. Such right to claim a return of unjust enrichment is not only a claim arising from real estate itself, but also cannot be seen as a claim arising from legal relations or factual relations identical with the right to claim a return of real estate based on ownership, etc., and eventually, the relationship between the subject-matter and the claim as a lien under Article 320(1) of the Civil Act cannot be recognized.

[2] The right to claim reimbursement of beneficial expenses against the person who restored the possessor pursuant to Article 203(2) of the Civil Act is established when the possessor is not entitled to legally possess the property, such as the contractual relationship, and is obligated to comply with the owner’s claim for restitution of the property. In a case where the possessor has legitimate title of possession, such as a contractual relationship, at the time of disbursement of beneficial expenses, the law or legal principles governing the contractual relationship shall apply to the repayment of the cost of

[1] Article 103 of the Civil Act / [title trust] Articles 320 (1) and 741 of the Civil Act, Article 4 (1) and (2) of the Act on the Registration of Real Estate under Actual Titleholder's Name / [2] Article 203 (2) of the Civil Act

[1] Supreme Court Decision 2002Da66922 Decided January 28, 2005 (Gong2005Sang, 393) Supreme Court Decision 2005Da16942 Decided September 7, 2007 (Gong2007Ha, 1553) / [2] Supreme Court Decision 2001Da64752 Decided July 25, 2003 (Gong2003Ha, 1828)

dong Agricultural Cooperatives (Attorney Nam-jin et al., Counsel for defendant-appellant)

Defendant

Daegu High Court Decision 2006Na8673 Decided April 24, 2008

The judgment of the court below is reversed, and the case is remanded to Daegu High Court.

The grounds of appeal are examined.

1. As to the violation of the rules of evidence

The selection of evidence and the recognition of facts are within the discretionary authority of a fact-finding court unless there are special circumstances such as violation of the principle of free evaluation of evidence (see Supreme Court Decision 2008Da70763, Jan. 15, 2009, etc.).

The court below rejected all the evidence that the defendant leased the real estate of this case from the non-party in full view of the circumstances acknowledged by the employment evidence. Meanwhile, the court below determined that the defendant's husband and wife was willing to own the real estate of this case and completed a title trust agreement between the non-party, purchased the real estate of this case from the Dong Daegu Credit Union under the name of the non-party, and completed the registration of ownership transfer under the name of the non-party, and, furthermore, in collusion with the

Examining the reasoning of the judgment below in light of the records, the above fact-finding and judgment of the court below did not contain any violation of the rules of evidence as alleged in the grounds of appeal.

2. As to the misapprehension of legal principles as to the satisfaction of secured debt, which is the requisite for establishing a lien

Where a title truster and a title trustee entered into a so-called contract title trust agreement, and the title trustee entered into a contract on real estate with the owner who was unaware of the fact that the title trustee was a party to the contract and completed the registration of ownership transfer under the name of the trustee, the title truster and the title trustee would be entitled to complete ownership of the relevant real estate (see Article 4(1) and (2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name). On the other hand, the title truster may not acquire ownership of the relevant real estate from the beginning, and on the other hand, he can only have the right to claim a return of unjust enrichment against the title trustee (see Supreme Court Decision 2002Da66922, Jan. 28, 2005). The title truster’s right to claim a return of unjust enrichment is not a claim arising from the real estate itself, but it is difficult to recognize that the title truster’s right to claim a return of real estate based on ownership, etc. is an identical legal relationship with the right to claim a return of ownership, etc.

In the same purport, the court below is just in holding that the defendant's right to claim the return of unjust enrichment equivalent to the purchase fund of the real estate of this case against the non-party cannot be deemed to be a claim arising from the real estate of this case, and therefore, it cannot be exercised the right of retention. There is no error in the misapprehension of legal principles as to the relation of relation between the claim and the goods

3. As to the misapprehension of legal principles as to the time period for repayment of beneficial costs and requirements for establishment of lien

According to the reasoning of the judgment below, the court below determined that the Defendant’s right to claim reimbursement of beneficial costs, which is in accordance with Article 203(2) of the Civil Act, is arising when the possessor receives a request for the delivery of possession from the person who was restored or delivers possession to the person who was restored, and is due and due. There is no evidence to prove that the Defendant received a request for the delivery of the instant real estate from the person who was the Nonparty, etc. or delivered the instant real estate to the person who was restored, and therefore, it cannot be deemed that the Defendant acquired a lien on the instant

However, the above judgment of the court below is hard to accept.

Under Article 203(2) of the Civil Act, a possessor’s right to claim reimbursement of beneficial expenses is established when the possessor does not have the right to lawfully possess the property, such as a contractual relationship, and is obligated to comply with the owner’s claim for return of the property. In cases where the possessor has a legitimate title of possession, such as a contractual relationship, at the time of disbursement of beneficial expenses, the law or legal principles governing the contractual relationship apply to the repayment of the expenditure or value increase in value (Supreme Court Decision 2001Da64752 Decided July 25, 2003).

According to the facts duly confirmed by the court below, the defendant purchased the real estate of this case from the Daegu Credit Cooperative and completed the registration of ownership transfer under the name of the non-party, and furthermore, in collusion with the non-party, occupied and used the real estate of this case without pretending that it was a lessee of this case. Thus, the above lease agreement between the defendant and the non-party should be null and void as a false agreement. However, in the case of the so-called contract title trust, unless there is any assertion or proof as to the fact that the Dong Daegu Credit Cooperative, the seller of this case, was aware of the fact of the title trust agreement between the defendant and the non-party, the non-party, the trustee of this case, pursuant to Article 4 (1) and (2) of the Act on the Registration of Real Estate under Actual Titleholder's Name, shall acquire the full ownership of the real estate of this case (see Supreme Court Decision 200Da21123, Dec. 26, 2002). The non-party, who was a party to this case's loan or loan of this case, should not be justified.

However, according to the records of this case, the defendant, while occupying and using the real estate of this case, spent the cost of the construction in consultation with the non-party, by urban gas construction work, gardening construction work, etc., and has increased the value of the real estate of this case due to such construction work. The auction procedure regarding the real estate of this case commenced after the payment of construction expenses and the decision on commencement of the auction procedure was served, making it difficult to continue the relation of the loan of this case difficult. The defendant reported the lien on the real estate of this case to the auction court under the premise that the non-party has the right to claim reimbursement of beneficial costs due to the above construction expenses and the payment period has arrived. The non-party already reported the above right to claim reimbursement of beneficial costs on the premise that the financial condition of this case has become worse and the payment period has already arrived. In light of the above facts, the defendant's right to claim reimbursement of beneficial costs claimed by the defendant has already become effective based on the above loan of use contract relation, and the above right to claim reimbursement has already been terminated due to the implied agreement between the defendant and the non-party.

Nevertheless, the court below determined that the defendant's right to claim reimbursement of beneficial costs is only a right to claim reimbursement of beneficial costs against the person who has recovered from the possessor pursuant to Article 203 (2) of the Civil Code, and that the due date for payment of the above right to claim reimbursement of beneficial costs has not yet arrived unless the defendant has yet delivered the real estate in this case or has received a request for extradition. It is obvious that the court below erred in the misapprehension of legal principles as to the due date for payment of the right to claim reimbursement of beneficial costs where the possessor has legitimate possession, which affected the conclusion of the judgment

4. Conclusion

Therefore, the judgment below is reversed, and the case is remanded to the Daegu High Court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)