[1] In a case where a person who intends to purchase real estate in the real estate auction procedure agrees to obtain a decision of permission for sale under another person's name while he/she bears the purchase price, and thereby the permission for sale was granted, whether a title trust relationship is established between the person who acquires the ownership of real estate for auction purpose (i.e., the title holder)

[2] In a real estate auction procedure where a title trust relationship is established between a person who actually bears the purchase price and a title holder, even if they agreed to transfer the title of the real estate or return the disposal price in accordance with the direction of the person who actually bears the burden of the purchase price, this constitutes a title trust agreement under the Act on the Registration of Real Estate under Actual Titleholder's Name, and thus, is also null and void since it falls under the category of

[1] Article 103 of the Civil Act / [title trust] Article 135 of the Civil Execution Act / [2] Article 103 of the Civil Act / [title trust] Article 135 of the Civil Execution Act, Article 4 (1) of the Act on the Registration of Real Estate under Actual Titleholder'

[1] Supreme Court Decision 2002Du5351 Decided September 10, 2002 (Gong2002Ha, 2447) Supreme Court Decision 2005Da664 Decided April 29, 2005 (Gong2005Sang, 826)

Plaintiff (Law Firm Barun, Attorneys Jeong Jin-jin, Counsel for plaintiff-appellant)

Defendant (Seng Law Firm, Attorneys Park Man-ho et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2005Na7070 decided April 26, 2006

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

We examine the grounds of appeal.

1. As to the assertion of an exemption from liability

In light of the records, the court below's rejection of the defendant's assertion that the non-party 1 exempted the non-party 2 from the obligation to return the lease deposit to the plaintiff and the designated parties, and there is no error of law such as misconception of facts against the rules of evidence.

2. As to the assertion regarding title trust

A. The court below held that the non-party 2 had an obligation to sell the real estate in the name of the non-party 2 to the non-party 3 0 and the non-party 3 0 and the non-party 2 had an obligation to sell the real estate in the name of the non-party 3 0 and the non-party 10 and the non-party 2 had an obligation to sell the real estate in the name of the non-party 2 0 and the non-party 80 and the non-party 2 had an obligation to sell the real estate in the name of the non-party 3 0 and the non-party 5 and the non-party 2 had an obligation to sell the real estate in the name of the non-party 2 0 and the non-party 2 had an obligation to sell the real estate in the name of the non-party 3 0 and the non-party 2 had an obligation to sell the real estate in the name of the non-party 2 0 and the non-party 2 should not request the defendant to sell the real estate 70 and the non-party 2.

B. In light of the records, we affirm the above fact-finding part of the court below's above, and there is no violation of the rules of evidence against the rules of evidence as otherwise alleged in the ground of appeal.

C. However, we cannot accept the above determination by the court below for the following reasons.

Where a person who intends to purchase real estate in the real estate auction procedure agrees with another person to obtain a decision of permission for sale in his/her own name and to obtain the permission for sale under another person's name, the person who takes the position of the purchaser in the auction procedure is the title holder, and thus the ownership of the real estate for the purpose of auction is acquired by the title holder regardless of who is the person who actually bears the purchase price. In such cases, a title trust relationship is established between the person who bears the purchase price and the person who lends the name (see, e.g., Supreme Court Decisions 2002Du5351, Sept. 10, 200; 2005Da664, Apr. 29, 2005).

As seen earlier, in the real estate auction procedure, if Nonparty 2 agreed with the Defendant to obtain a decision of permission for sale under the name of the Defendant, and the sale was made in accordance with the agreement, the title trust relationship between Nonparty 2 and the Defendant on the real estate of this case was established, and the above title trust agreement between Nonparty 2 and the Defendant is null and void pursuant to Article 4(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name. Accordingly, Nonparty 2 is not entitled to claim a return of the real estate of this case or the proceeds of the disposal thereof (only the purchase price provided can be claimed as unjust enrichment). Furthermore, even if Nonparty 2 and the Defendant agreed to transfer the ownership of the real estate of this case or return the proceeds of the disposal thereof under the direction of Nonparty 2 and the Defendant, this agreement is eventually null and void, on the premise that the title trust agreement is valid.

Nevertheless, the court below determined that the agreement between the non-party 2 and the defendant to transfer the title of ownership of the real estate of this case or to return the price for the sale of the real estate of this case in accordance with the order of the non-party 2 was valid, and accepted the plaintiff's assertion that the defendant is liable to return the price for the sale of the real estate of this case pursuant to the above agreement. Thus, there is no error of law by misunderstanding the legal principles as to

3. Conclusion

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 Ahn Dai-hee (Presiding Justice)