Plaintiff 1 and one other (Attorney Yellow-gu, Counsel for the plaintiff-appellant)

Defendant

Defendant joining the Defendant (Attorney Kim Shin-chul, Counsel for defendant-appellant)

May 25, 2016

Busan District Court Decision 2013Gahap19833 Decided June 11, 2015

1. According to the change of claim in the trial room, the defendant shall pay to the plaintiffs the share of 308450/504099 out of 496,306 m2,306 m2.

A. On March 25, 2009, the registration procedure for cancellation of the supplementary registration of the provisional registration of the right to claim transfer of ownership, which was completed by the Busan District Court Yangsan District Court No. 12949 on March 25, 2009

B. Ulsan District Court Yangsan District Court Yangsan registry office, followed the procedure for registration of cancellation of ownership transfer registration, which was completed on November 9, 2012 by the receipt No. 5894.

2. Of the total litigation cost, the part arising between the plaintiffs and the defendant is assessed against the defendant, and the part arising from the supplementary participation is assessed against the defendant.

1. Purport of claim

(a) The primary claim

The text of paragraph (1) is as follows.

(b) Preliminary claim

1) The sales contract concluded on November 7, 2012 with respect to the share of 308450/504099 (hereinafter “instant real estate”) out of 496,306 square meters of woodland 496,306 square meters in Gyeyang-si ( Address omitted) between Nonparty 1 ( Nonparty: Nonparty) and the Defendant (hereinafter “instant sales contract”).

2) The Defendant will implement the registration procedure for cancellation of the ownership transfer registration as to the instant real estate, which was completed on November 9, 2012 by the Ulsan District Court Yangsan District Court Yangsan registry office, which was received on November 9, 2012, to the Plaintiffs.

3) In the Ulsan District Court case No. 2012Dadan19962, Ulsan District Court Decision No. 2012 decided Apr. 22, 2013 (hereinafter “the instant decision on recommending reconciliation”) between Nonparty 2 (the heir of Nonparty 1) and the Defendant confirms that the decision on recommending reconciliation rendered on Apr. 22, 2013 (hereinafter “the instant decision on recommending reconciliation”) is null and void. On an selective basis, Nonparty 2’s act of not raising an objection against the said decision on recommending reconciliation was revoked (the Plaintiff added the primary claim in the trial and added the claim of the Defendant in the first instance trial to Nonparty 3).

2. Purport of appeal

The part relating to the defendant in the judgment of the first instance shall be revoked. The same shall apply to (i) and (ii) of the preliminary claim.

1. Basic facts

A. Nonparty 1 owned the instant real estate. On April 11, 2008, Nonparty 3 entered into a pre-sale agreement with Nonparty 3 on the instant real estate and completed the pre-sale registration of the entire share transfer claim based on the said pre-sale agreement (hereinafter “the provisional registration of this case”) under the receipt of No. 17463 on April 11, 2008.

B. On March 24, 2009, the Defendant’s Intervenor (hereinafter “ Intervenor”) received the right to provisional registration of this case from Nonparty 3, and completed the supplementary registration of provisional registration (hereinafter “additional registration of this case”) under the name of the Defendant, who was his/her spouse, as of March 25, 2009, based on the receipt No. 12949 on March 25, 2009, under the name of his/her spouse.

C. After that, Nonparty 1 died on November 8, 2012. As of November 7, 2012, Nonparty 1: (a) concluded a sales contract on the instant real estate with the seller Nonparty 1; (b) the buyer as the Defendant; and (c) a certificate of personal seal impression issued to Nonparty 4 as the buyer on November 9, 2012; and (d) Nonparty 5 issued a certificate of personal seal impression issued to Nonparty 1 as the buyer on the instant real estate on behalf of Nonparty 1 with the above sales contract and a certificate of personal seal impression issued on November 9, 2012; and (b) Nonparty 5 completed the principal registration based on the provisional registration (hereinafter “instant registration”) under the name of the Defendant on behalf of Nonparty 1 on November 9, 2012 with the same sales contract and certificate of personal seal impression, etc. the grounds for registration was indicated as the seller on November 7, 201201.

D. Meanwhile, the date of preparation of the confirmation document prepared by Nonparty 5, attached at the time of application for the registration of this case, is November 9, 2012, and the form immediately before the death of Nonparty 1 is specified in the column of the special engineer.

E. On February 19, 2013, Nonparty 6, the heir of Nonparty 1, renounced inheritance, Nonparty 6, the father and the father, who was the heir of Nonparty 2, filed a report on the inheritance-limited approval with the U.S. District Court No. 2013-Ma28, which was the co-defendant of Nonparty 2, and received the said report from the above court on February 19, 2013 (hereinafter “instant qualified acceptance”).

[Ground of recognition] The fact that there is no dispute, Gap's entries in Gap's 1 through 7, 9 through 11, 13, and 14 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Judgment as to the primary claim added in the trial

A. Summary of the plaintiffs' primary claims

The plaintiffs (1) The supplementary registration of the provisional registration of this case is based on title trust for the purpose of evading tax evasion or avoiding statutory restrictions, and does not fall under the exception clause of Article 8 subparagraph 2 of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”). (2) The registration of this case is null and void as it violates the Real Estate Real Name Act, and (3) the registration of this case is null and void as it is null and void as the supplementary registration of this case is null and void as a matter of course. (2) Even if the provisional registration of this case is valid, since the defendant and the intervenor divorced on February 3, 2010, the registration of this case was completed on November 9, 2012, there is no room to apply the exception clause of Article 8 subparagraph 2 of the Act on the Registration of Real Estate under Actual Titleholder’s Name and thus, it is null and void as it did not go through the sale contract of this case, which was issued by Nonparty 4 on November 9, 2012.

In the below, I will examine the plaintiffs' primary claims and the claims of the defendant and the intervenor against them (hereinafter collectively referred to as "the defendant, etc.") by each item.

B. Determination as to whether to recognize the plaintiffs' claims

1) Parties’ assertion

A) The Plaintiffs asserted that Nonparty 1 had the following claims against Nonparty 1.

① On November 2, 2012, Plaintiff 1 loaned KRW 200 million to Nonparty 1, the business owner of the Yangsan ○○ Natural Recreation Development and Development Project (hereinafter “instant project”) with the said project funds due date for repayment on February 25, 2013. As such, there is a claim for loans equivalent to the said amount.

② The Plaintiff Hanhwa Construction Co., Ltd. (hereinafter “Plaintiff Hanhwa Construction”) entered into a contract for construction works with Nonparty 1 on November 7, 2012 regarding the instant project. On November 9, 2012, prior to the commencement of the said construction project, Nonparty 1 transferred his/her share in the said land to the Defendant, and the ownership transfer registration was completed in the name of the Defendant regarding the said co-ownership on November 9, 2012. Accordingly, the obligation of Nonparty 1 as the contractor of the construction contract was impossible, and thereby, the Plaintiff Han Hansung Construction incurred damages equivalent to the said amount because it failed to obtain the benefit of KRW 143,021,312. Accordingly, the Plaintiff Han Hansung Construction has damage claim equivalent to the said amount.

B) The defendant's assertion

The Defendant et al. asserted that the above claim of the Plaintiffs was nonexistent on the following grounds.

① The loan certificate (Evidence A No. 1-1) stating that Plaintiff 1 lent KRW 200 million to Nonparty 1 does not have any interest agreement, and Nonparty 1 did not have any writing, and there is no certificate of personal seal impression issued on November 9, 2012, which was after Nonparty 1’s death, and there is also lack of relevant evidence, such as financial data, which is deemed to have been actually paid KRW 200 million to Nonparty 1.

② There is no particular evidence to deem that the Plaintiff Han Han Construction Co., Ltd. actually paid the deposits for forest recovery costs in accordance with the payment guarantee certificate, and otherwise, there is insufficient evidence to prove the relevant damage.

(ii) the facts of recognition

The following facts are recognized in full view of each of the statements in Gap evidence Nos. 1 through 6, 9, 11, and 13 and the purport of the whole pleadings.

① On January 7, 2013, Nonparty 2, upon filing an application for the qualified acceptance of the instant case, indicated that Nonparty 2 had a large amount of liability for all 27 creditors, including a debt of KRW 30 million for the Plaintiff’s comprehensive construction (No. 15), and a debt of KRW 70 million against Plaintiff 1 (No. 20) as a small property.

② In the judgment of the first instance court of this case, the existence of the plaintiffs' claims against the non-party 1 was recognized, and the judgment ordering the payment of the plaintiffs' claims against the non-party 2 within the scope of the property inherited by the non-party 1 was rendered, and the above judgment became final and conclusive as it was because the non

3) Determination

A) The above facts are revealed in full view of the purport of the argument as to Gap evidence Nos. 19 through 25. In other words, even if it is not bound by other civil cases, the facts already established in the relevant civil case cannot be rejected without reasonable grounds (see Supreme Court Decision 2008Da92312, Sept. 24, 2009, etc.). ② The plaintiffs submitted objective evidence, such as disposal documents about their claims, and Non-party Nos. 2 also recognized the part of the claims of this case as the small property of Non-party No. 1. 3, the claim amount of the plaintiffs' assertion and the amount acknowledged by Non-party No. 2 as the plaintiffs' claims in the instant application for approval from the limitation of this case are nothing more than the (date of birth omitted) and it is hard to view that there is a difference between the claims of Non-party No. 1 and Non-party No. 2 as the plaintiff's claims after the above application for qualified acceptance.

B) Therefore, the Defendant’s assertion to the effect that the Plaintiffs’ primary claim of this case, seeking the cancellation of the provisional registration of this case and the registration of this case (hereinafter referred to as “the provisional registration of this case, etc.”) based on the obligee’s subrogation, is unlawful, is not acceptable, since there is no claim against Nonparty 1.

C. Determination as to whether registration based on title trust in violation of the Real Estate Real Name Act is null and void

1) Parties’ assertion

A) The Plaintiffs asserts to the effect that all of the instant provisional registration, etc. violates the Real Estate Real Name Act and is null and void, and that all of them should be cancelled.

B) As to this, the Defendant, etc. asserts to the effect that the Intervenor purchased the instant real estate from Nonparty 3, a person entitled to provisional registration of the instant real estate during the period of marriage with the Defendant, and completed the instant provisional registration, etc. through title trust on the ground of the conclusion of the pre-sale agreement.

(ii) the facts of recognition

The following facts are acknowledged in light of the following: (a) the developments leading up to the completion of the provisional registration, etc. of this case, as seen earlier; and (b) the purport of the entire pleadings in the statement No. 1

① The Defendant and the Intervenor reported the marriage on December 12, 2001, but completed the agreement divorce on February 3, 201.

② In the response against the plaintiffs’ complaint, the defendant stated as follows (see, e.g., Articles 47 and 48 of the record) that the intervenor received the provisional registration of this case from the non-party 3 and completed the supplementary registration in the future of the defendant is a title trust between the husband and wife.

The former husband of the Defendant’s husband, which was included in the main text, had been engaged in real estate brokerage and real estate development business in the area of water in Yangsan City since before 2004, and in 2008, the value-added tax of the first quarter of the year 194,669,58 and global income tax of 121,765,570 won has been engaged in large scale real estate brokerage and real estate development business. If the Intervenor purchased the real estate of this case as recreational forest, he began to purchase shares, and the shares purchased by seeking the Defendant’s understanding was nominal trust in the name of the Defendant. The real owner of the real estate of this case subject to the lawsuit of this case is the Intervenor, and the Defendant is not the actual owner, and the Defendant is not the actual owner, and thus, is requested to make a decision of recommending reconciliation with the content of cancelling the registration completed under the name of

③ At the time of taking over the provisional registration of this case from Nonparty 3, the intervenor informed Nonparty 3 of the circumstances that the Defendant will title trust.

3) Determination

A) In light of the following circumstances revealed in full view of the purport of the entire argument in the above facts, the additional registration of the instant provisional registration was completed according to the purpose of tax evasion, etc., and it does not constitute an exception clause under Article 8 subparagraph 2 of the Real Estate Real Name Act, and thus, it is deemed that it is invalid as a title trust violating the Real Estate Real Name Act

In light of the Defendant’s response, around March 25, 2009, around the time when the supplementary registration of the instant provisional registration was completed, the Intervenor, who was a spouse under the law of the Defendant, actively engaged in real estate development business, etc., so it seems that the Plaintiff was in a situation where excessive tax assessment can be imposed when acquiring the instant real estate in the name of the Intervenor, and there is sufficient room to view that the supplementary registration of the instant provisional registration was completed in the name of the Intervenor to avoid this.

The purpose of Article 8 subparag. 2 of the Act on the Registration of Real Estate under Actual Name is to recognize special cases concerning title trust between the legal married spouses under Article 8 subparag. 2 of the Act on the Registration of Real Estate under Actual Name is to combine the revenue and to understand the property relationship between the couple, as there are many couples, making it difficult to understand the property relationship between the couple. Since registering real estate in the name of one side has been made through a natural practice, it is necessary in reality to recognize title trust between the couple. In addition, if it is intended to resolve the title trust between the several existing couple, there is a concern that division between the couple and the social confusion may occur in the process (see Constitutional Court en banc Decision 2009Hun-Ba400, Dec. 28, 2010). However, even considering such legislative intent, it seems that there is no need to recognize such exceptional title trust between the defendant and the intervenor in the case where unlawful purposes, such as tax evasion, etc., have been revealed.

If a property relationship between the defendant and the intervenor is difficult to clearly distinguish, in light of the circumstances, if the method of title trust was used exceptionally pursuant to Article 8 subparagraph 2 of the Real Estate Real Name Act, it seems reasonable to adjust the real estate of this case through the division of property, etc. at least during the time of legal divorce. Nevertheless, even until the lapse of six years from February 3, 2010 when the defendant, etc. divorced, there was no particular measure regarding the real estate of this case.

Most of all, the defendant et al. did not argue or prove that the supplementary registration of the provisional registration of this case is invalid because the plaintiffs do not constitute an exception to Article 8 subparagraph 2 of the Real Estate Real Name Act.

B) Therefore, the plaintiffs' assertion that the additional registration of this case and the registration of this case are all null and void is with merit.

D. Determination as to whether the registration in this case is null and void due to the principal registration without following the liquidation procedure

1) Parties’ assertion

A) The Plaintiffs asserted to the effect that the instant provisional registration is null and void without undergoing liquidation procedures on the premise that it is a provisional registration for security to which the Provisional Registration Security Act applies.

B) On this point, the defendant et al. asserts that the provisional registration of this case is not a provisional registration for security, but a provisional registration for the priority preservation of the right to claim ownership transfer registration, and that the provisional registration of this case had already been exercised the right to complete

2) Determination

A) In light of the provisions of Articles 3 and 4 of the Provisional Registration Security Act, if the principal registration based on the provisional registration for security was made in violation of each of the above provisions, the principal registration is null and void, and even if the principal registration was made by a special agreement between the person having the right to provisional registration and the debtor, if the special agreement is null and void because it is unfavorable to the debtor, the special agreement remains null and void. However, if the person having the right to provisional registration notifies the debtor, etc. of the appraised value of the liquidation money in accordance with the procedures provided for in Articles 3 and 4 of the Provisional Registration Security Act, and there is no settlement money to pay or pay the liquidation money to the debtor, the said registration may become a valid registration that conforms to the substantive legal relations after the period of liquidation expires two months from the date the debtor is notified of the liquidation (see Supreme Court Decisions 2002Da42001, Dec. 10, 2002; 2007Da49595, Dec. 13, 2007).

B) the facts of recognition

The following facts are acknowledged in full view of the contents of evidence Nos. 14 and 17, and the purport of the whole pleadings.

① On April 11, 2008, Nonparty 1 drafted and delivered to Nonparty 3 a copy of the loan amount of KRW 60 million, interest rate of KRW 2.5% per month, interest payment due date, April 10, 2009,

② As to the instant real estate, not only the provisional registration of April 11, 2008, but also the establishment registration of the instant real estate of Nonparty 3, the mortgagee of the right to collateral security, with the maximum debt amount of November 4, 2008, KRW 50 million, and Nonparty 3 with the right to collateral security.

③ On June 18, 2012, the Defendant filed a lawsuit against Nonparty 1 seeking the implementation of the procedure for the registration of ownership transfer based on the completion of the pre-sale agreement on March 25, 2009 (hereinafter “previous lawsuit”) with the Ulsan District Court 2012Kadan1962, Ulsan District Court 2012, the instant real estate against Nonparty 1 (hereinafter “previous lawsuit”). The Defendant asserted in the written lawsuit that the pre-sale was completed as the Defendant’s claim against Nonparty 3, out of KRW 164,00,000,000 against Nonparty 1’s debt against Nonparty 3, the KRW 100,000,000 against Nonparty 3, and the remainder of KRW 64,00,000,00

④ On the other hand, Nonparty 1 did not receive the purchase price of the instant real estate from Nonparty 3, but only completed the provisional registration of this case and the establishment registration of a neighboring mortgage as a security for the obligation against Nonparty 3, and the debt amount was merely KRW 76 million. On the other hand, on November 4, 2008, the Defendant submitted to Nonparty 1 as evidence related to the second copy of the loan certificate (the loan amount of KRW 60 million and KRW 16 million) as of November 4, 2008, which was prepared and issued by Nonparty 1 to Nonparty 3. In fact, on the instant real estate, the establishment registration of a neighboring mortgage of Nonparty 3 was completed on November 4, 2008.

⑤ The Intervenor stated that the sales contract on the instant real estate, the purchase price of which is one billion won, was prepared to reduce capital gains tax in the future, and that at the time the instant registration on the instant real estate was completed and thereafter, the Intervenor did not actually pay the purchase price to Nonparty 1 or his/her heir pursuant to the instant sales contract (see, e.g., the second pleading of December 2, 2015 at the court).

④ Meanwhile, according to the appraisal result conducted in the auction case of Ulsan District Court 2015 Mata285, the real estate price of the instant case as of December 7, 2015 is KRW 500 million (1,800/m2) and is assessed as KRW 800 million (2,900/m2) around April 12, 2012 (A evidence 17).

C) Determination

The following circumstances revealed in light of the purport of the entire argument, i.e., Nonparty 1 asserted that the provisional registration of this case was completed for the purpose of securing loan funds from Nonparty 3 in the previous lawsuit. As alleged by Nonparty 1, the real estate of this case was completed on April 11, 2008 as well as the provisional registration of this case on November 4, 2008. On March 24, 2009, before the additional registration of this case was completed, the above provisional registration was transferred to the Defendant on March 24, 2009, which was the day before the provisional registration of this case was completed, the above provisional registration of this case was transferred to the Defendant. (B) The Defendant et al. asserted to the effect that the provisional registration of this case had exercised the right to complete purchase and sale by paying the purchase price in full at the time of the additional registration of this case, but there is no other financial material to support this, and if it had already been exercised on March 25, 2009, it is difficult to apply the provisional registration of this case.

Therefore, it is judged that the registration of this case completed without undergoing the liquidation procedure under the Provisional Registration Security Act is null and void.

Therefore, this part of the plaintiffs' assertion is justified.

E. Determination as to whether the instant sales contract becomes null and void due to a false representation in collusion

The evidence as shown in this part of the plaintiffs' assertion reveals the following: Gap evidence Nos. 7, 8, and 16 and the fact-finding results on the non-party 5 to the certified judicial scrivener of this court; however, each of the above evidence submitted by the plaintiffs alone is insufficient to recognize that the sales contract of the real estate of this case was invalid because it used a false or forged document, and there is no other evidence supporting

Therefore, this part of the plaintiffs' assertion is not accepted.

F. Determination as to whether registration conforms to substantive relations

1) Defendant et al.’s assertion

Even if there is a defect in the registration of this case, as alleged by the plaintiffs, the defendant asserted that the registration of this case is valid as it conforms to the substantive relationship, in the previous lawsuit against the non-party 2, since the non-party 2 became final and conclusive with the defendant to complete the registration of ownership transfer of this case's real estate.

(ii) the facts of recognition

The following facts are recognized in full view of each of the statements in Gap evidence Nos. 6, 9, 14, and Eul evidence No. 3 and the purport of the whole pleadings.

① On November 8, 2012, while the previous lawsuit brought by the Defendant against Nonparty 1 was pending, Nonparty 1 actively asserted that the instant real estate had no obligation to register the ownership transfer. Nonparty 2 took over the previous lawsuit due to Nonparty 1’s death. At the time, Nonparty 7 attorney Park Jong-young, Law Firm, the Defendant’s attorney at the time of taking over the previous lawsuit on January 7, 2013, submitted a party indication correction and a written application for taking over the lawsuit (Evidence 14-24).

② On January 7, 2013, Nonparty 2 asserted that: (a) the decedent Nonparty 1 did not have positive property; (b) Nonparty 3 did not have positive property; (c) Nonparty 2 received, as a small property, a debt of KRW 50 million against Nonparty 3 (No. 11); (d) the debt of KRW 30 million for the Plaintiff Hanhwa Construction; and (e) the debt of KRW 70 million against Plaintiff 1 (No. 20,000) and the total debt of KRW 27 to the creditors. However, Nonparty 2 received the instant application for approval of the instant limited qualification on behalf of the Defendant in the previous lawsuit on behalf of Nonparty 7 of the law firm gold-gu, which was represented by the Defendant.

③ After that, on March 6, 2013, Nonparty 2 submitted a reply to the effect that “No objection may be raised even if the ownership transfer of the instant real estate was transferred to the Defendant” in the previous litigation. The said documents did not have the name of Nonparty 2 and the next seal affixed thereto.

④ On March 29, 2013, which took place after Nonparty 2’s written reply from March 7, 2013, Nonparty 2 was submitted, Nonparty 2 was not present on the date of pleading on March 29, 2013, and thereafter, Nonparty 2’s reply was submitted to the effect that he will complete the registration of ownership transfer in the future of the Defendant again on April 17, 2013. Nonparty 2’s seal was affixed to this reply, and Nonparty 2’s certificate of personal seal was attached (No. 14-24, 25).

⑤ On April 22, 2013, the non-party 2, a party to the lawsuit of non-party 1, was issued a ruling of recommending settlement that "the non-party 2, a party to the lawsuit of the non-party 1, based on the provisional registration that was completed on April 11, 2008 by the Busan District Court Yangsan Registry on the real estate in this case, shall implement the procedure of ownership transfer registration based on the completion of the reservation made on March 25, 2009," and on May 10, 2013, the decision of recommending settlement (hereinafter referred to as "the decision of recommending settlement in this case") became final and conclusive as is.

3) Determination

A) The decision to recommend a compromise has a creative effect like a judicial compromise, and if a compromise is made, the relationship based on the previous legal relationship is extinguished, and at the same time a new legal relationship arising from the judicial compromise is formed effectively (see Supreme Court Decision 2005Da42880, Feb. 1, 2008, etc.). Meanwhile, even if the registration of ownership transfer is completed without any cause and the registration of ownership transfer is completed based on the registration of invalidity of the cause, if the registration is consistent with the substantive relationship due to other circumstances (see Supreme Court Decision 88Meu71, Sept. 12, 1989, etc.).

B) We examine the plaintiffs' assertion that the registration of this case conforms to the substantive relations. Even if the registration of this case should be cancelled as the registration of invalidation for the same reason as seen earlier, if the registration of this case should only be completed with respect to the real estate in the name of the defendant according to the decision of recommendation for reconciliation of this case which became final and conclusive in the previous lawsuit, and if the registration of this case can continue to exist effectively, it would be deemed that the registration of this case conforms to the substantive relations.

Meanwhile, the plaintiffs asserted that the act of Nonparty 2, through the preliminary claim, did not object to the decision of recommending reconciliation in the previous lawsuit, and thus, the decision of recommending reconciliation in the previous lawsuit became final and conclusive, so that the registration of ownership transfer can be completed in the future of the defendant with respect to the real estate of this case, which is the only property inherited from Nonparty 1, constitutes a fraudulent act that infringes on the general obligees's property liability. Such assertion appears to include the assertion that even if the registration of ownership transfer is completed in the future of the defendant in accordance with the decision of recommending reconciliation in the instant case, it shall be revoked in accordance with the claim for revocation of

(1) In light of the following circumstances: (a) in light of the overall purport of the pleadings, the facts of recognition as seen earlier, the Defendant and Nonparty 2’s agreement on the transfer and acquisition of each of the instant real estate by around April 17, 2013 in which Nonparty 2 expressed the intention to implement the registration procedure for the transfer of ownership of the instant real estate; and (b) in order to avoid the creditor’s compulsory execution against the majority of Nonparty 1 including the Plaintiffs, it is likely to be deemed that the legal act between the Defendant and Nonparty 2, who transferred the ownership of the instant real estate, constitutes a false conspiracy or a fraudulent act; and (c) barring any special circumstance, the Defendant’s bad faith as a beneficiary is presumed to be a beneficiary.

In light of the fact that Nonparty 2’s death in the previous lawsuit was taken over by Nonparty 1, but this was made by the Defendant’s application, and Nonparty 2’s application for the approval of inheritance is also also made on January 7, 2013 on behalf of the Defendant in the previous lawsuit, the filing date of the written reply on March 7, 2013 and April 17, 2013 (hereinafter “each reply of this case”) submitted by Nonparty 2 in the previous lawsuit is likely to be involved in the Defendant’s preparation and submission of each reply on April 7, 2013.

According to each reply submitted under the name of Nonparty 2 in the previous lawsuit, the purport of Nonparty 1’s completion of the registration of ownership transfer on the instant real estate before the death is indicated. However, Nonparty 2’s seal exists only in the reply dated March 7, 2013 without Nonparty 2’s seal, and in the previous lawsuit, Nonparty 1, who claimed non-existence of the Defendant’s obligation to register ownership transfer while specifically opposing the Defendant’s claim for the registration of ownership transfer, did not change any other circumstances, it is difficult to understand the fact that Nonparty 1’s completion of the registration of ownership transfer to the Defendant itself immediately before the death, and it is difficult to view the instant real estate as being transferred to the Defendant on April 12, 2012 without receiving an additional payment of KRW 80,000,000,000 for the instant real estate from the Defendant, and it is difficult to conclude the registration of ownership transfer by reflecting the intention of the Defendant 1 to complete the registration of ownership transfer in the name of the Defendant 1.

C. On November 9, 2012, the Defendant appears to have completed the registration of this case on November 9, 2012, and thus, it is no longer necessary to maintain the previous lawsuit. However, even thereafter, the Defendant received the decision of recommending reconciliation in this case at the request of Nonparty 2 in the previous lawsuit. This seems to be a measure to prevent the risk of Nonparty 1, including Nonparty 2 and Nonparty 2, and Nonparty 1, including the Plaintiffs, to make an attempt to secure the real estate as the responsible property by raising an issue as to the validity of the registration of this case.

According to the written application for the qualified acceptance of this case filed by Nonparty 2, Nonparty 1, including the plaintiffs, has a large amount of obligation against many creditors including the plaintiffs, while there is no responsible property. While being aware of this situation, Nonparty 2, despite being aware of this situation, submitted each of the instant answers to the purport that the Defendant’s claim for the ownership transfer registration of the instant real estate, which can be seen as the sole property of Nonparty 1, was accepted. Even if a part of the money was paid from the Defendant according to the liquidation procedure prescribed in the Provisional Registration Security Act, the said money would be attributed to Nonparty 1’s creditors, and there is no possibility that it would be left against Nonparty 1’s heir. In light of the interests of Nonparty 2 and the circumstances leading up to the preparation and submission of each reply in the previous lawsuit, it appears that the submission of each reply is likely to be in accordance with the agreement on the transfer of the instant real estate between the Defendant and Nonparty 2.

In a case where a decision to recommend reconciliation is confirmed on the grounds of the debtor's legal act that causes damage to the debtor (including the plaintiff, etc.) and the debtor (the defendant) and the beneficiary (the plaintiff) to the creditor, or the fact of the requirements that were written in order to conceal it, it is difficult for the creditor to claim a retrial or a quasi-adjudication to challenge its validity under the current law. Therefore, it is necessary to recognize the creditor's right of revocation as to the legal act which causes the final decision to recommend reconciliation.

C) Comprehensively taking account of the aforementioned circumstances, even if the Defendant completed the registration of ownership transfer of the instant real estate in accordance with the decision of recommending reconciliation in the previous lawsuit, its substance is merely that the Defendant and Nonparty 2 entered into a transfer agreement that was concluded around April 17, 2013, and the decision of recommending reconciliation in the instant case was used as a means to conceal such fraudulent act (transfer agreement). Therefore, the above transfer agreement between the Defendant and Nonparty 2 on the instant real estate is likely to be revoked as a fraudulent act. Thus, even if the ownership transfer registration of the Defendant’s name was completed in accordance with the decision of recommending reconciliation in the instant case, it would be difficult to eliminate the possibility of cancellation by the fraudulent act revocation lawsuit by Nonparty 1, including the Plaintiffs.

Therefore, the defendant's assertion to the effect that the registration of this case is consistent with the substantive relations is not reasonable, on the premise that the registration of this case can be completed and sustained with respect to the real estate of this case in accordance with the decision of recommending reconciliation in this case which became final and conclusive in the previous lawsuit.

G. Sub-committee

As seen earlier, the additional registration of the provisional registration of this case and the registration of this case should be cancelled as all invalidation registration.

3. Conclusion

Therefore, the plaintiffs should accept the main claim of this case, which was added to the plaintiffs according to the amendment of the claim in the trial. It is so decided as per Disposition.

Judges Park Jae-chul (Presiding Judge)

1) At present, the Supreme Court of Gwangju High Court Decision 2014Na3844 (Supreme Court Decision 2016Da204783) that revoked a transfer agreement between the debtor and the beneficiary by deeming it as a fraudulent act is still pending.