A Study on the Case of Unjust Enrichment Where the Title Trustee disposed of the Title Trust Immovable in the Title Trust Involving a Third Party and the Subject of the Right to Claim for Unjust Enrichment

The Korean Supreme Court issued an en banc decision 2018Da284233. The issue is who can claim a right to unjust enrichment in a case where the title trustee disposed of the title trust immovable in the title trust involving a third party. The majority opinion held that the title trustor can claim a right to unjust enrichment, whereas the dissenting opinion held that the seller can claim. The majority of published commentaries on this judgment are against the majority opinion of the judgment in question, and in favor of the dissenting opinion. However, as with the majority opinion, the view that the trustee can seek the return of unjust enrichment is reasonable. The reason for this is as follows. First, it is because the seller cannot be held responsible for the impossibility of performance of the trust real estate. In order for the seller to be held accountable, circumstances must be recognized that the seller may have cooperated illegally, such as transferring the registration despite knowing the title trust. However, as an average person, the seller cannot distinguish title trust from similar but legally permissible concepts such as interim registration. Therefore, even if the seller directly transferred the registration to the title trustee, it cannot be seen that he cooperated while knowing the facts of the title trust, so the cause cannot be recognized. Therefore, the title trustee cannot hold the seller liable for default, and as a remedy for the title trustee, it is reasonable to acknowledge the claim for return of unjust enrichment against the title trustee. Furthermore, since the title trustee's position to occupy, use, and profit from the entrusted real estate is not separable from the buyer's position in the sales contract, the title trustee concurrently serves as an unregistered buyer who takes delivery of the object of sale and uses and profits from it. The status of an unregistered buyer includes the right to use and profit as well as the right to legally dispose of and transfer, and is much stronger than a claim for simple possession. Therefore, an unregistered purchaser cannot be seen as a simple creditor, and it is appropriate for a title trustor who concurrently holds the status of an unregistered purchaser to recognize independent allocated profits. Therefore, the majority opinion is valid.