The meaning of "when the title trust relationship is terminated," which is the initial date of the exclusion period for the imposition of a penalty surcharge under Article 5 (1) of the Act on the Registration of Real Estate under Actual Titleholder's Name, and where the registration in the name of the original title truster was cancelled after the cancellation of the registration in the name of a third party which is void of the cause, the initial date

In light of the relevant statutes, such as Article 5(7) of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”), Article 3(5) of the Enforcement Decree of the Act on the Registration of Real Estate under Actual Titleholder’s Name, Article 38(1)3 of the Framework Act on Local Taxes, Article 18(1)2 of the Enforcement Decree of the Framework Act on Local Taxes, etc., the exclusion period for imposition of penalty surcharges under Article 5(1) of the Real Estate Real Name Act is five years, and the initial date thereof is the time when the title trust relationship is terminated. The term “when the title trust relationship is terminated” refers to “the time when the title trust relationship is terminated” under the proviso of Article 5(2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, in light of the language and structure of the relevant provisions, it is reasonable to determine the exclusion period for imposition of penalty surcharges under the name of the title truster rather than the time for registration under the name of a third party where the title truster was cancelled.

Article 5(1), (2), and (7) of the Act on the Registration of Real Estate under Actual Titleholder’s Name; Article 3(5) of the Enforcement Decree of the Act on the Registration of Real Estate under Actual Titleholder’s Name; Article 38(1)3 of the Framework Act on Local Taxes; Article 18(1)2 of the Enforcement Decree of the Framework Act on Local Taxes

[Plaintiff-Appellant] Plaintiff 2004Du2509 delivered on July 22, 2004 (Gong2004Ha, 1541) Supreme Court Decision 2004Du2776 Delivered on January 13, 2006 (Gong2006Sang, 250)

Plaintiff

The head of Seocho-gu Seoul Metropolitan Government (Law Firm Corporation, Attorneys Kim Jong-hwan et al., Counsel for the defendant-appellant

Seoul High Court Decision 2012Nu6454 decided August 16, 2012

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below acknowledged facts as stated in its holding, and held that the disposition of this case, which was made five years after the lapse of the exclusion period of the penalty surcharge, was unlawful, on the ground that the title trust relationship between the plaintiff and the non-party 1 was terminated on September 2, 2004 when the registration of ownership transfer was made under the name of the non-party 3 church (hereinafter referred to as the "non-party church") and embezzled the real estate in collusion with the non-party 1, the title trustee of which was held under the title trust by the plaintiff, without knowledge of

2. However, it is difficult to accept the above determination by the court below for the following reasons.

A. In light of the relevant Acts and subordinate statutes such as Article 5(7) of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”), Article 3(5) of the Enforcement Decree of the same Act, Article 38(1)3 of the Framework Act on Local Taxes, and Article 18(1)2 of the Enforcement Decree of the same Act, the exclusion period for the imposition of a penalty surcharge under Article 5(1) of the Real Estate Real Name Act is five years, and the initial date is the time when the title trust relationship is terminated (see, e.g., Supreme Court Decisions 2004Du2509, Jul. 22, 2004; 2004Du2776, Jan. 13, 2006); “when the title trust relationship is terminated” is the same as “the time when the title trust relationship is terminated or the time when the title trust relationship is terminated” under the proviso of Article 5(2) of the Real Estate Real Name Act.

However, as in the instant case, where the registration under the name of a third party, which was null and void, was cancelled, and the registration was restored under the original title truster’s name, it is reasonable to set the exclusion period of imposition of the penalty surcharge on the basis of the “time of actual name registration” in the future of the title truster rather than

B. According to the reasoning of the first instance judgment cited by the lower judgment, the Plaintiff completed the registration of ownership transfer on the instant real estate in its name on February 28, 201, and the Defendant can be aware of the fact that the instant disposition was rendered on April 25, 201, and thus, the instant disposition is lawful as it was imposed within the exclusion period.

C. Nevertheless, the court below held that the disposition of this case was unlawful since the title trust relationship between the plaintiff and the non-party 1 terminated on September 2, 2004, which took place five years after the exclusion period was terminated. It erred by misapprehending the legal principles on the initial date of the exclusion period in imposing the penalty surcharge under the Real Estate Real Name Act.

3. Therefore, 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 on the bench.

Justices Park Poe-young (Presiding Justice)