2008다69572
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transfer of ownership [Supreme Court 2008. 11. 27., Sentencing, 2008 Da 62687, Judgment] 【Disclaimer】 [1] A person who acquires ownership of real estate in the event that a person who intends to purchase real estate in the real estate auction procedure agrees to receive a sale permission decision in the name of another person while paying the purchase price himself/herself (= title trust) and whether a title trust relationship is established between the bearer of the purchase price and the title holder (actively) [2] Before the enforcement of the Act on Registration of Real Estate Owner’s Name If the title trustee acquires complete ownership of the real estate after the registration of transfer of ownership to the title trustee has expired and the grace period prescribed by the same Act has elapsed, the title trustee is subject to undue profits to be returned to the title trustee (= the real estate itself)
【Summary of Judgment】 [1] In the real estate auction procedure, if the purchaser’s consent is obtained in the auction procedure, if the purchaser’s permission is granted as a result of an agreement with the other person to obtain a sale permission decision in the name of the other person while paying the purchase price Since the person standing in the position is the holder of the title, the title of the real estate for auction is acquired by the holder regardless of who actually paid the purchase price. In this case, a title trust relationship is established between the person who paid the purchase price and the person who lent the name. [2] If the title trustee acquires the title of ownership for real estate according to the title trust agreement before the enforcement of the Act on Registration of Name of Real Rights Owner, the title trustee becomes the title trustee until the grace period specified in Article 11 of the same Act after the enforcement of the above Act has elapsed was able to terminate the title trust agreement at any time and acquire ownership of the real estate . On the other hand, the title trustee acquires complete ownership of the real estate, and the title trustee eventually acquires the real estate itself unfairly, and Articles 3 and 4 of the same Act prevent the transfer of ownership to the title trustee As the title trustee is not obligated to return the real estate acquired by him/her to the title trustee as an unfair advantage.
【Reference article】 [1] Article 103 [Title Trust] of the Civil Act, Article 135 of the Civil Execution Act [2] Article 3 , Article 4 , Article 11 , Article 12 , Article 741 , Article 741 of the Civil Act Article 747
【Reference precedent】 [1] Supreme Court Sentencing on April 29, 2005 Decision of 2005da664 (Gong 2005 Award, 826) / [2] Supreme Court Decision 2000da21123 Sentencing on December 26, 2002 (Gong 2003 Award, 452), Supreme Court 2007. 6 14. Judgment 2007da17284 Judgment
【specialty】
【Plaintiff, Appellant and Respondent】
【Defendant, Respondent and Appellant】
【Original Trial Judgment】
Seoul Northern District Court 2008. 7. 23. Sentencing 2008Na1499 Judgment
【order】 All of the original judgment is reversed and the case is remanded to the collegiate panel of the Seoul Northern District Court.
【Reason】
The plaintiff's and the defendant's grounds for appeal are viewed together.
1. Determination of whether or not a title trust
is available The person who takes the position of the buyer in the procedure is the owner to the end, so the ownership of the real estate for auction is assumed to be acquired by the owner regardless of who actually paid the purchase price. A title trust relationship is established between the person and the person who has lent the name ( refer to the Supreme Court decision 2005da664 sentenced on April 29, 2005 ).
According to the reasons for the judgment of the lower court, the lower court held that, as stated in the judgment, the defendant lent a total of 90 million won each 30 million won each with the plaintiff and alienated 1 to alienated 2, and as collateral for the land owned by alienated 2, In the voluntary auction procedure for the land in this case, which was initiated due to the fact that a near-mortgage right was established with the two persons with the root mortgaged being the defendant and the alienated 1, and the alienated 2 delayed fulfilling the above obligations, the defendant received a decision to permit the sale on June 7, 1993. The fact that the sale price was 42.75 million won, the defendant wrote the 'Agreement for Reimbursement in Property' to the plaintiff on May 23, 1993, prior to the decision to permit the sale, and then rejected the decision to permit the sale on January 4, 1996. The fact that the 'Memorandum of Execution' was written to the plaintiff again when the registration of transfer of ownership in the defendant's name due to the cause was completed After acknowledging the fact that he also possessed a certificate of right to register the land in this case, the plaintiff and the defendant agreed to the agreement on May 23, 1993 for 1/2 of the land in this case It was interpreted as a title trust agreement between
If we look at the evidence adopted by the lower court in the light of the records, we can accept the fact and judgment of the lower court as justifiable, and there is no reason to say that there is an illegality in violation of the law of evidence.
2. Judgment on the subject of unreasonable profit return
The lower court held that the 'Act on the Registration of Real Estate Owner's Name' (hereinafter referred to as the 'Real Name Act') came into effect on July 1, 1995 and invalidated the title trust agreement. With respect to the plaintiff's peripheral claim (the first selective claim) that the property was acquired without legal cause, and that it seeks its return as an unfair advantage, the defendant, the title trustee, was found to have obtained an unjustified interest in the real estate stake due to the invalidity of the title trust agreement. However, it was dismissed on the ground that only the proceeds from the sale provided by the plaintiff were unfairly obtained.
However, it is difficult to accept the above judgment of the lower court as it is.
If the title trustee acquires the title of ownership in accordance with the title trust agreement before the enforcement of the Real Name Trust Act, the title trustee may terminate the title trust agreement at any time after the enforcement of the Real Name Real Name Act and until the grace period prescribed in Article 11 of the same Act elapses. It was possible to acquire ownership of the real estate, but as the above grace period has elapsed without measures such as real-name change, the title trust agreement becomes null and void pursuant to Article 12 (1) and 4 of the same Act, while the title trustee In the end, the trustee will have to view the real estate itself as an unfair advantage because the title trustee acquires complete ownership of The title trustee is obliged to return the real estate acquired by the trustee as an unfair advantage ( refer to the Supreme Court decision 2000da21123 on Dec. 26, 2002 ).
As the trial court recognized in this case, if the defendant received a decision to permit the sale in the name of the defendant alone on June 7, 1993 in the auction procedure according to the title trust agreement with the plaintiff and paid all the sale proceeds at that time (July 21, 1993) Judging from the fact that the dividend table was written in letters, it seems that the above payment was made before) Therefore, it is said that the ownership of the land in this case was transferred from the previous owner to the defendant, who is the trustee, from the previous owner before the Real Name Real Estate Act was enforced. The trustee, the plaintiff, could terminate the title trust agreement and acquire the ownership of 1/2 of the share at any time after the enforcement of the Real Name Real Estate Act and before the grace period stipulated in Article 11 elapsed. The title trust agreement becomes invalid and the defendant, the trustee, acquires complete ownership of the land share.
Nevertheless, the lower court erroneously judged the subject of the above unfair profit return and dismissed the above circumstantial claim. The argument is there for a reason.
3. Conclusion
Therefore, it is not necessary to judge the reasons for appeal of the plaintiff for the remaining peripheral claims that have been selectively merged and the remaining grounds for appeal of the defendant for the first preliminary claim cited in the lower court, without having to judge all of the original judgment and set aside the case. For retrial and judgment, it is decided to remand to the original court, and the judgment is made as in the order with the unanimous opinion of the relevant Supreme Court justices.
Supreme Court Justice Park Il-hwan (Presiding Judge) Yang Seung-tae (referee) Park Si-hwan Kim Neung-hwan