2018Da288969 Registration of transfer of ownership

1. A;

2. B

[Defendant-Appellant] Defendant 1

Attorney Noh Jeong-hee, and Park Jong-hee

C

Attorney Lee Jae-in, Counsel for the plaintiff-appellant

Seoul Central District Court Decision 2017Na20172 Decided October 26, 2018

March 28, 2019

The judgment below is reversed, and the case is remanded to the Seoul Central District Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. A. According to the reasoning of the lower judgment, the lower court acknowledged the following facts based on adopted evidence.

(1) The Plaintiff and the Defendant, E, F, G, and D (hereinafter collectively referred to as “joint investors”) are in line with high school line, and Plaintiff B is the spouse of Plaintiff A.

(2) Joint investors agreed to purchase the land located in Jeju-do as a joint project and to carry on the penture business. On April 19, 201, they concluded a sales contract under the name of the Defendant with the purchase of the land Nos. 1 and 2 with the joint investment money, and completed the registration of ownership transfer on the 24th of the same month.

(3) Joint investors newly built the instant building on the land of this case with joint investment money, etc. and completed registration of preservation of ownership in D name on December 8, 2003, and run a pension business in the name of "J" in the said building.

(4) Meanwhile, on May 23, 2014, the Defendant set up a right to collateral security of KRW 39,000,000 with respect to the instant land No. 2, and received a loan of KRW 30,000,000 from the Defendant.

(5) On July 2015, Plaintiff A, E, F, G, and D (hereinafter collectively referred to as “five of the joint investors”) drafted an agreement on the settlement of the instant investment funds that Plaintiff A would purchase for KRW 350,000,00 the instant land and the instant building (hereinafter collectively referred to as “each of the instant real estate”), and the main contents thereof are as follows.

(A) Five of the joint investors and five of the Plaintiff A shall, by agreement, pay the price for each of the instant real estate to five of the joint investors as follows:

1) Sales amount is KRW 350,000,000.

2) The settlement amount for E is KRW 41,847,420, KRW 27,210,00 for the Defendant, KRW 50,07,410 for the settlement amount for the Plaintiff A, KRW 68,037,070 for the settlement amount for the Plaintiff, KRW 39,567,420 for the settlement amount for G, KRW 39,567,420 for the settlement amount for G, and KRW 52,940,680 for the settlement amount for D, and the settlement amount for D is KRW 279,610,00 for the total settlement amount.

(B) The Plaintiff A shall treat KRW 72,80,000 as the sum of the monthly rent deposit (14,800,000) and the housing loan (28,00,000) and the land loan (30,000,000) under his/her responsibility and bear the taxes and public charges incurred during the performance of the contract.

(C) The plaintiff A succeeds to the right to a "land loan debtor".

(6) On July 29, 2015, Plaintiff A concluded the instant sales contract with the Defendant to purchase the instant land in KRW 20,000,000,000, and agreed that KRW 19,000,000, excluding the down payment of KRW 1,000,000, out of the said purchase price of KRW 20,000, shall be reverted to Plaintiff A. (7) On the same day, Plaintiff A concluded the instant second sales contract with the Defendant to purchase the instant land in KRW 35,00,000 on the same day, while the said Plaintiff concluded the instant second sales contract with the Defendant to purchase the instant land in KRW 35,00,00,00.

The remainder of KRW 2,00,000,000, out of the total purchase price of KRW 32,000,000, paid in subrogation of the balance of the right to collateral security claim, and the remainder of KRW 30,000,000, out of the total purchase price of KRW 32,000,000, was agreed to revert to A.

(8) Accordingly, the Plaintiff A repaid to the Loan Bank the above KRW 30,000,000 on the same day on behalf of the Defendant, and the registration of the establishment of a mortgage on the instant land No. 2 in the name of the Defendant was cancelled.

(9) As a matter of the qualification certificate for acquisition of land No. 2, Plaintiff A entered into the instant modified contract with the Defendant on August 28, 2015, changing the purchaser of land No. 2 to Plaintiff B.

B. Next, the lower court determined that the instant sales contract and the instant modified contract cannot be deemed a valid sales contract between the Plaintiffs and the Defendant on the grounds that the total market price of the instant land Nos. 1 and 2 at the time of the instant contract and the instant modified contract did not exceed KRW 224,630,40,000, and that the total purchase price did not exceed KRW 55,000,000, as well as KRW 27,210,000, as well as KRW 30,000, in addition to the land loans stipulated in the instant modified contract, were not paid for the amount of KRW 27,210,00.

2. However, we cannot agree with the above determination by the court below for the following reasons.

A. As long as the establishment of a disposal document is recognized as authentic, the court should recognize the existence and content of the declaration of intent as stated in the disposal document, unless there is any clear and acceptable counter-proof that denies the contents of the written content of the disposal document (see, e.g., Supreme Court Decisions 2002Da23482, Jun. 28, 2002; 2004Da60065, May 27, 2005); and a person who asserts the burden of proof as to the facts that the juristic act is a false declaration of intention (see, e.g., Supreme Court Decisions 2001Da51626, Nov. 27, 2001; 2005Da39617, Jul. 12, 2007).

B. Review of the evidence duly admitted and the record reveals the following facts.

(1) According to the instant agreement on the settlement of investments made around July 2015 by five joint investors, the principal invested in each of the instant real estate is KRW 31,760,00 per E, the Defendant: KRW 27,210,00; KRW 39,920,00 for the Plaintiff; KRW 57,949,658 for the Plaintiff; KRW 29,480,000 for G; KRW 29,480,00 for the Plaintiff; and KRW 42,853,260 for the Plaintiff’s total amount of KRW 72,80,000 for each of the instant real estate and each of the instant real estate and the amount of KRW 72,80,00 for the Plaintiff’s total amount of KRW 14,80,00 for housing loans, KRW 28,000 for the Plaintiff; KRW 30,00 for the Plaintiff’s total amount of KRW 300,00 for each of the instant real estate.

(2) On July 29, 2015, Plaintiff A and the Defendant met the Defendant on July 29, 2015, and the Plaintiff and the Defendant written the instant sales contract with E and D, stating that the contract amount of KRW 1,00,000 and KRW 3,000,000 of the instant sales contract was received at the time of the instant contract, even though the contract amount of KRW 1,00,000 was not received.

(3) Meanwhile, on the same day, Plaintiff A issued to the Defendant a promissory note with the face value of KRW 25,00,000, and the due date of July 28, 2020, and the said Promissory Notes issued a notarial deed with respect to the said Promissory Notes with the law firm LA No. 140 on July 28, 2020. Examining the following circumstances known in the facts and records in light of the legal principles as seen earlier, it is difficult to view that the duly adopted evidence alone was insufficient to prove that the instant 1 and 2 sales contract or the instant modified contract was not a valid contract due to the genuine intent between the Plaintiffs and the Defendant. Rather, it is reasonable to view that the Defendant signed the 1 and 2 sales contract corresponding to the content of the instant written agreement for settlement of investment amount, thereby confirming the said settlement agreement and at the same time, agreed to bear all the seller’s obligations under the said sales contract.

(1) Of the instant contract for settlement of investment amount concluded around July 2015 between five joint investors, the part related to the Defendant is that the Plaintiff succeeds to or reimburses the obligation of KRW 30,000,000 under the name of the Defendant, and the ownership of each of the instant real estate shall be reverted to the Plaintiff. Meanwhile, at the time of the conclusion of the instant contract, the ownership of each of the instant real estate shall be reverted to the Plaintiff. In light of the following: (a) KRW 25,00,000 (i) the down payment and the remainder of the instant contract; (b) KRW 1,000,000 + the balance of the instant contract for the instant 2 contract + KRW 19,00,000 + the settlement of the down payment of KRW 3,00,000 + the balance of the instant contract for the instant 2 contract for settlement of investment amount to the Defendant; and (c) the Defendant is obligated to pay the remainder of KRW 20,000 among the remainder of the instant contract for settlement of investment amount to the Plaintiff 1.

(2) The amount of money that can be assessed as having been paid by the Plaintiff A to the Defendant is 30,00,000 won paid by the Plaintiff on behalf of the Plaintiff. However, the Defendant does not dispute the fact that the Plaintiff purchased each of the instant real estate with joint investments. The Plaintiff succeeds to the obligation of KRW 72,80,000, including the obligation of KRW 30,000,000 under the name of the Defendant, and the Plaintiff agreed to pay KRW 202,392,590 in total with the settlement amount for E,F, G, and D, other joint investors, and the obligation to pay KRW 202,392,590 (=72,80,000,000 + the obligation to pay KRW 202,392,590) to the Plaintiff on behalf of the Plaintiff, and the reason for the difference between the sales contract and the market value of the instant land was the aggregate of KRW 200,000,000.

(3) With respect to the issuance of the Promissory Notes, both the Plaintiffs and the Defendant asserted that the transfer income tax that may arise at the time of the transfer of the title to the land Nos. 1 and 2 was issued for the Plaintiff A to bear the said transfer income tax. The face value of the said Promissory Notes is equal to KRW 25,000,000 in total with the down payment and the balance disposed of as paid in the absence of payment at the time of the conclusion of the sales contract No. 1 and 2. Meanwhile, the officially assessed land price of the land No. 1 at the time of 2015 was similar to KRW 17,160,000 in total with KRW 20,000 in the sales contract of the instant case, and the officially assessed land price of the instant land No. 2 at the time of 20,376,000 in total to KRW 35,00 in the sales contract of the instant case, and KRW 200,000 in total with the sale price of the instant land.

D. Nevertheless, solely based on its stated reasoning, the lower court determined that the instant contract was not a valid contract between the Plaintiffs and the Defendant based on the genuine intent. In so determining, the lower court erred by misapprehending the legal doctrine on the probative value of a disposal document or the burden of proof, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

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.

Supreme Court Decision 200

Sang-ok

Justices Noh Jeong-hee

Justices Kim Jae-hwan in charge