Dongjin Lee, Fiduciary Purchase of Real Estate for the Account of Another, Knowing Seller, and Buyer–Fiduciary Titleholder’s Conversion (2018), The Journal of Property Law, Vol. 34, No. 4(2018), pp. 279–304.
<Abstract>
Article 4 subsection (1) and sentence 1 of subsection (2) of Act on the Registration of Real Estate Under Actual Titleholder’s Name (hereinafter ‘the Act’) prohibits title trust and nullifies the registration of real estate under the name of fiduciary titleholder. This holds true even when the title trust was executed by a fiduciary purchase under the name of fiduciary titleholder for the account of another, if the seller, on contracting, knew that it was a fiduciary purchase and the buyer was mere a fiduciary titleholder. As a result, the seller retains the ownership of the real estate even after he executed the contract and registrated the buyer as a new owner of it. The buyer who has a registration of the real estate, however, can convey it to another, and, once his ownership is registrated, the seller loses his ownership according to article 4 subsection (3) of the Act. The problem is whether the seller, who sold the real estate but still held the ownership of it and lost it by the conversion of the buyer, can sue for damages for the loss of his ownership against the buyer. The Korean Supreme Court ruled for the buyer in a recent decision rendered on September 12. 2013, case no. 2010Da95185. In this article I analyzes the arguments presented by the Supreme Court and demonstrates that it cannot be agreed at any point. At the same time, I show that the conclusion of it is still agreeable and provide an alternative account of the same conclusion.
<Keywords>
Act on the Registration of Real Estate Under Actual Titleholder’s Name , fiduciary purchase of real estate for the account of another , knowing seller , buyer– , fiduciary titleholder’s conversion , damages for the loss of ownership
Dongjin Lee, Fiduciary Purchase of Real Estate for the Account of Another, Knowing Seller, and Buyer–Fiduciary Titleholder’s Conversion (2018), The Journal of Property Law, Vol. 34, No. 4(2018), pp. 279–304.
<Abstract>
Article 4 subsection (1) and sentence 1 of subsection (2) of Act on the Registration of Real Estate Under Actual Titleholder’s Name (hereinafter ‘the Act’) prohibits title trust and nullifies the registration of real estate under the name of fiduciary titleholder. This holds true even when the title trust was executed by a fiduciary purchase under the name of fiduciary titleholder for the account of another, if the seller, on contracting, knew that it was a fiduciary purchase and the buyer was mere a fiduciary titleholder. As a result, the seller retains the ownership of the real estate even after he executed the contract and registrated the buyer as a new owner of it. The buyer who has a registration of the real estate, however, can convey it to another, and, once his ownership is registrated, the seller loses his ownership according to article 4 subsection (3) of the Act. The problem is whether the seller, who sold the real estate but still held the ownership of it and lost it by the conversion of the buyer, can sue for damages for the loss of his ownership against the buyer. The Korean Supreme Court ruled for the buyer in a recent decision rendered on September 12. 2013, case no. 2010Da95185. In this article I analyzes the arguments presented by the Supreme Court and demonstrates that it cannot be agreed at any point. At the same time, I show that the conclusion of it is still agreeable and provide an alternative account of the same conclusion.
<Keywords>
Act on the Registration of Real Estate Under Actual Titleholder’s Name , fiduciary purchase of real estate for the account of another , knowing seller , buyer– , fiduciary titleholder’s conversion , damages for the loss of ownership