Effect in the case of title trust as an endowment of a foundation corporation

Where real estate has been registered for transfer of ownership under the name of a foundation in order to create the basic property of the foundation, it shall be reverted to the foundation as it constitutes the basic property of the foundation even if it has been registered for title trust.

Articles 43 and 48 of the Civil Act

Supreme Court Decision 71Da1176 delivered on August 31, 1971 (Kakaddd. 9797 and 9798; Supreme Court Decision 19Du256 and 259; Decision No. 43(7)216 of the Civil Act)

Jeon-hee et al.

The Foundation for the Maintenance of the Organization of the Korean Film Association;

Seoul Central District Court (73 Ga4994) in the first instance trial

The plaintiff's appeal is dismissed.

Expenses for appeal shall be borne by the plaintiff.

The original judgment shall be revoked.

The defendant shall execute the procedure for the registration of transfer of ownership on the ground that the real estate in the separate sheet Nos. 1,2,3,4,5 is selected for the plaintiffs (the main claim).

The Defendant shall implement the procedure for the registration of ownership transfer under the agreement on July 23, 1962 with respect to the real estate listed in the separate sheet to the Plaintiffs. If the Defendant is unable to implement the registration of ownership transfer with respect to the real estate listed in the separate sheet No. 6,7,8 among the above real estate, the Defendant shall pay the Plaintiffs KRW 27,612,00 (preliminary claim).

The judgment of both the first and second courts that the lawsuit costs shall be borne by the defendant and the judgment of provisional execution on the part for which the payment of the above money is sought.

1. Judgment on the main claim

The plaintiffs originally owned the real estate listed in the attached list as the cause of the main claim. At around April 1956, in order to create a common property of the supervision institute, an international university, which is a private school, established for the management of the international university (hereinafter the supervision institute), the plaintiffs trusted the real estate before the supervision institute. On or around the end of 1957, when the supervision institute was dissolved due to the operation of the supervision institute, the supervision institute shall return the real estate to the plaintiffs in accordance with the policy of the general interest council members of the supervision institute of the non-party 1, who was in charge of the management of the supervision institute (hereinafter the "general interest council members"), and later transferred the ownership to the defendant, a foundation established for the management of the general interest council members for the convenience of the procedure, the plaintiffs will return the above property from the defendant to the defendant, and the plaintiffs and the defendant agreed to the above real estate in this case, and the plaintiffs will terminate the title trust as a service to the defendant on the ground that the above real estate was again registered in title trust before the defendant.

The above real estate is presumed to have been owned by the parties because the ownership transfer registration for the above real estate was completed on February 15, 1975 under the name of 197.2. The above real estate is presumed to have been completed on January 5, 1963. The above real estate is presumed to have been owned by the above real estate under the name of 1 to 8, and the legal relationship of the ownership transfer registration for the above real estate is presumed lawful. In addition, the above real estate is not established under the name of 1 to 2, the evidence No. 3, the certificate No. 4-2 (Registration Certificate), the certificate No. 4-2 (Gift), the certificate No. 8, the certificate No. 9 (Contract), the certificate No. 99), the certificate No. 2 (No. 2) of the above real estate transferred to the board of directors for the same purpose as the above real estate under the name of 1 to be transferred to the above 5-mentioned organization. The plaintiffs' right of ownership transfer registration for the real estate was established under the name of 1 to be transferred.

Therefore, even if transferring the ownership of the real estate of this case to the above supervising private teaching institute, as alleged by the plaintiffs, the basic property of the incorporated foundation is the substance of the incorporated foundation, so the donation of property for the formation of basic property of the incorporated foundation is only allowed to vest the ownership of the incorporated foundation. (Therefore, in the case of the above donation, it should be recognized that the ownership of the property should be vested in the incorporated foundation. The title trust contract, such as reserving the ownership to the donor, is not effective against the institutional purport of the incorporated foundation (see Supreme Court Decision 71Da176 delivered on August 31, 1971). Thus, as in this case, as long as the plaintiffs contributed the real estate of this case for the formation of basic property of the supervising private teaching institute of the incorporated foundation, and completed the registration of ownership transfer to the above private teaching institute, and as long as it was incorporated into the basic property, the ownership of the incorporated foundation is legally effective by the supervision as alleged by the plaintiffs.

Therefore, even if the assertion is true after the right to this real estate was reverted to the above supervising private teaching institute, even if the title trust of the assertion is not held in the position of the truster with respect to the real estate of this case (i.e., the plaintiff became an unentitled person through the inside and outside of the country), there is no room to bring about the effect that the plaintiff re-titled the real estate of this case to the defendant foundation after the end of 1957. Therefore, the plaintiffs' claim for the registration of ownership transfer with respect to the real estate of this case under title trust with the defendant foundation, based on the premise that the real estate of this case was duly nominal trust with the above supervising private teaching institute, and its effect has become effective.

2. Judgment on the ancillary claims:

The plaintiffs asserted as preliminary claim. The non-party supervisory institute decided to return the real estate of this case, which is the same private teaching institute, to the plaintiffs at the time of the completion of the registration of ownership transfer before the defendant foundation. On July 23, 1962 between the above private teaching institute and the defendant foundation, the ownership of the real estate of this case to be returned to the plaintiffs is provisionally transferred to the defendant foundation. The foundation formed a trust contract for the plaintiffs, a third party to return the ownership at any time upon the plaintiffs' request. Since the plaintiffs expressed their intent of profit to the defendant foundation over several times, the defendant foundation is obligated to implement the procedure of ownership transfer registration for the reasons of the above agreement. If the defendant is unable to implement the procedure of ownership transfer registration for the real estate of 6,7,8 among the real estate listed in the attached list, the compensation for the above performance, which is equivalent to the market price of the above real estate as of December 12, 1964, which is equivalent to KRW 27,261,200.

First of all, as alleged above, whether the agreement exists on July 23, 1962, the evidence rejected earlier, and the part corresponding to the above argument in Gap evidence 5 (Notice), Gap evidence 6 (Peremptory Notice), and Gap evidence 11 (Written Request) shall not be trustable in light of the evidence acknowledged earlier, and since there is no evidence to acknowledge otherwise, the above preliminary claim based on the premise that the agreement exists on July 23, 1962 of the above assertion shall be without merit.

3. Conclusion

Therefore, all of the plaintiffs' claims shall be dismissed. Accordingly, the original judgment with the same conclusion is just, and the plaintiffs' appeal is without merit, and the costs of appeal are assessed against the losing party and it is so decided as per Disposition.

Judges Kim Sang-won (Presiding Judge)