Open Decision Ledger · Civil obligations & remedies
Subrogation and restitution in a three-party registered name trust
Supreme Court, July 25, 2019, 2019Da203811 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 부당이득금·대여금
Official text on the National Law Information Center
Question
In a three-party registered name trust, may the trustor subrogate to the seller to demand cancellation of the void transfer registered in the nominee's name in order to preserve the claim to ownership transfer under the sale contract, and must the nominee return as unjust enrichment the benefit obtained from the disposition price or compensation where a third party acquires the property, including by auction?
Holding
Yes to both. In a three-party registered name trust the sale contract between the trustor and the seller remains valid, so the trustor may claim a transfer of ownership from the seller and, to preserve that claim, may subrogate to the seller to demand cancellation of the transfer voidly registered in the nominee's name. Where the nominee disposes of the property, or a third party acquires it by expropriation, agreed compulsory purchase or auction, absent special circumstances the third party acquires ownership validly, the seller's obligation to transfer becomes impossible, and the nominee must return to the trustor as unjust enrichment the benefit gained from the disposition price or compensation; the same reasoning applies where the transfer to a third party was completed by auction.
Points at issue, verbatim
3자간 등기명의신탁에서 명의수탁자가 신탁부동산을 임의로 처분하거나 강제수용이나 공공용지 협의취득 등을 원인으로 제3취득자 명의로 이전등기가 마쳐진 경우, 명의수탁자가 명의신탁자에게 명의신탁 부동산의 처분대금이나 보상금으로 취득한 이익을 부당이득으로 반환할 의무가 있는지 여부(적극) 및 이러한 법리가 경매를 원인으로 제3취득자 명의로 이전등기가 마쳐진 경우에도 마찬가지로 적용되는지 여부(적극)
Unofficial English translation
In a three-party registered title trust, where the nominee has disposed of the trust property at his or her discretion, or where a transfer registration has been completed in the name of a third-party acquirer on the ground of compulsory expropriation, negotiated acquisition of public land, or the like, whether the nominee is obliged to return to the trustor the benefits acquired from the proceeds of disposition or the compensation for the trust property as unjust enrichment (affirmative), and whether such legal principle applies equally where a transfer registration has been completed in the name of a third-party acquirer on the ground of auction (affirmative)
Disposition
Dismissed Stated in the decision
상고를 기각한다. 상고비용은 피고(반소원고)가 부담한다.
Unofficial English translation
The appeal is dismissed. The costs of the final appeal shall be borne by the defendant (counterclaim plaintiff).
Form of the test
Existing test applied Stated in the decision
앞서 본 법리에 따라 기록을 살펴보면, 아래와 같이 판단된다.
Unofficial English translation
Upon examining the records in light of the legal principle stated above, this case is decided as follows.
Factors
- 명의신탁자가 매매계약에 기초한 소유권이전등기청구권을 보전하기 위하여 매도인을 대위하여 무효인 명의수탁자 명의의 소유권이전등기의 말소를 청구할 수 있는지 여부(적극)
- 명의수탁자가 신탁부동산을 임의로 처분하거나 강제수용이나 공공용지 협의취득 등을 원인으로 제3취득자 명의로 이전등기가 마쳐진 경우
- 명의수탁자가 명의신탁자에게 명의신탁 부동산의 처분대금이나 보상금으로 취득한 이익을 부당이득으로 반환할 의무가 있는지 여부(적극)
- 경매를 원인으로 제3취득자 명의로 이전등기가 마쳐진 경우에도 마찬가지로 적용되는지 여부(적극)
Unofficial English translation
• Whether the trustor may, in order to preserve the claim for transfer of ownership based on the sale and purchase agreement, exercise subrogation on behalf of the vendor to claim cancellation of the ownership transfer registration in the name of the nominee whose registration is void (affirmative)
• Where the nominee has disposed of the trust property at his or her discretion, or where a transfer registration has been completed in the name of a third-party acquirer on the ground of compulsory expropriation, negotiated acquisition of public land, or the like
• Whether the nominee is obliged to return to the trustor the benefits acquired from the proceeds of disposition or the compensation for the trust property as unjust enrichment (affirmative)
• Whether such legal principle applies equally where a transfer registration has been completed in the name of a third-party acquirer on the ground of auction (affirmative)
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2002. 3. 15. 선고 2001다61654 판결 참조
Unofficial English translation
See Supreme Court Decision 2001Da61654 decided March 15, 2002
Decisions referred to
[1] 대법원 2002. 3. 15. 선고 2001다61654 판결(공2002상, 882) / [2] 대법원 2011. 9. 8. 선고 2009다49193, 49209 판결(공2011하, 2042), 대법원 2015. 9. 10. 선고 2015다207235 판결
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Where the nominee's benefit consists only of being released from debts to its own creditors and of a claim against the State for the distributed amount, how is the amount to be returned to the trustor measured?
A later decision measuring the restitution owed in a three-party name trust where the auction proceeds were distributed to the nominee's creditors would require this entry to be read again, as would any amendment to Article 103 of the Civil Code or Article 4 of the Act on Registration of the Real Rights Holder of Real Estate.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 6 of the 8 axes; the readings differed on axis 4 (form of the test), axis 8 (open question and revisit condition).
Axis 4 (Form of the test): Primary “Existing test applied” vs Independent “Elements stated”
Both readings record that the judgment does not address the burden of proof, so the enumeration difference reflects how each reader describes the restitution framework.
이러한 법리가 경매를 원인으로 제3취득자 명의로 이전등기가 마쳐진 경우에도 마찬가지로 적용되는지 여부(적극)Axis 8 (Open question and revisit condition): Primary “Where the nominee's benefit consists only of being released from debts to its own creditors and of a claim against the State for the distributed amount, how is the amount to be returned to the trustor measured?” vs Independent “How should restitution be calculated when auction proceeds discharge debts incurred for the trustor's benefit rather than the trustee's own benefit?”
The primary asks how to measure the return when the nominee's benefit is release from its own debts and a claim against the State, while the independent reading asks how to measure it when auction proceeds paid the trustor's debts.
3자간 등기명의신탁에서 명의수탁자가 신탁부동산을 임의로 처분하거나 강제수용이나 공공용지 협의취득 등을 원인으로 제3취득자 명의로 이전등기가 마쳐진 경우, 명의수탁자가 명의신탁자에게 명의신탁 부동산의 처분대금이나 보상금으로 취득한 이익을 부당이득으로 반환할 의무가 있는지 여부(적극) 및 이러한 법리가 경매를 원인으로 제3취득자 명의로 이전등기가 마쳐진 경우에도 마찬가지로 적용되는지 여부(적극)Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Daegu High Court, in its judgment of 19 December 2018 (2017Na25087, 25094), applied the law of two-party registered name trust to the building site as well as to the building. It held that because the property was sold to a third party at auction, the defendant obtained without legal cause a benefit equal to the auction price and the plaintiff, the trustor, suffered the loss of ownership, so the defendant had to return that benefit as unjust enrichment; it dismissed the defendant's counterclaim in full.
Supreme Court standard: The Supreme Court held that the statement that the trustor lost ownership of the building site was wrong, because the seller held the ownership and lost it to the third-party acquirer, so what the trustor lost was the right to have ownership transferred to it. It found, however, that the conclusion that the nominee must return the benefit it gained on the site as unjust enrichment was correct, so there was no error of law affecting the judgment. It also upheld the dismissal of the counterclaim, accepting that the defendant's claim was KRW 13,539,261 and that the plaintiff had repaid more than that amount, and dismissed the appeal by the unanimous opinion of the Justices concerned.
Distinguishing conditions
- A case in which no third party has validly acquired ownership, so the seller's obligation to transfer ownership has not become impossible.
- A registered name trust between the trustor and the nominee only, where the seller is not a separate party whose obligation can be made impossible and whose claim can be subrogated.
- A third-party acquisition prevented by special circumstances from being valid, since the Court's reasoning rests on the third party acquiring ownership in principle.
Record verification notes
Trace the registration chain from the original seller through the intermediate nominee to the defendant, and confirm that the trust is a three-party one and that the third-party acquisition was valid, here by auction around 2017. Then fix the benefit precisely: the Court described it as release from debts equal to the amount distributed to the defendant's creditors together with the claim against the State for payment of that amount, not the whole sale price. Do not rely on the lower court's wording that the trustor lost ownership of the site, since the Supreme Court corrected it.
From the official text
Points at issue
[1] 3자간 등기명의신탁의 경우, 명의신탁자가 매매계약에 기초한 소유권이전등기청구권을 보전하기 위하여 매도인을 대위하여 무효인 명의수탁자 명의의 소유권이전등기의 말소를 청구할 수 있는지 여부(적극) [2] 3자간 등기명의신탁에서 명의수탁자가 신탁부동산을 임의로 처분하거나 강제수용이나 공공용지 협의취득 등을 원인으로 제3취득자 명의로 이전등기가 마쳐진 경우, 명의수탁자가 명의신탁자에게 명의신탁 부동산의 처분대금이나 보상금으로 취득한 이익을 부당이득으로 반환할 의무가 있는지 여부(적극) 및 이러한 법리가 경매를 원인으로 제3취득자 명의로 이전등기가 마쳐진 경우에도 마찬가지로 적용되는지 여부(적극)
Unofficial English translation
[1] In the case of a three-party registered title trust, whether the trustor may, in order to preserve the claim for transfer of ownership based on the sale and purchase agreement, exercise subrogation on behalf of the vendor to claim cancellation of the ownership transfer registration in the name of the nominee whose registration is void (affirmative) [2] In a three-party registered title trust, where the nominee has disposed of the trust property at his or her discretion, or where a transfer registration has been completed in the name of a third-party acquirer on the ground of compulsory expropriation, negotiated acquisition of public land, or the like, whether the nominee is obliged to return to the trustor the benefits acquired from the proceeds of disposition or the compensation for the trust property as unjust enrichment (affirmative), and whether such legal principle applies equally where a transfer registration has been completed in the name of a third-party acquirer on the ground of auction (affirmative)
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
상고를 기각한다. 상고비용은 피고(반소원고)가 부담한다.
Unofficial English translation
The appeal is dismissed. The costs of the final appeal shall be borne by the defendant (counterclaim plaintiff).
Provisions referred to
[1] 민법 제103조[명의신탁], 부동산 실권리자명의 등기에 관한 법률 제4조 [2] 민법 제103조[명의신탁], 제741조, 부동산 실권리자명의 등기에 관한 법률 제4조
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