Unregistered resales, and a one-third title trust

This case comment concerns forest land later split into plots 1 to 4. Before the split, the land had belonged to a third-party company. In 1984 the company sold it; the month is not given in the notes, and is not supplied here. In 1988 the land was resold, still unregistered, for 124.48 million won, and the buyer named on the contract was written so that a further unregistered resale would be possible.

Around that time the defendant was told that the pre-split land had been bought for 196.50 million won, and was invited to buy. The defendant agreed to take 2,000 pyeong and paid 81 million won in all. Around December 1988 part of the pre-split land was sold at 60,000 won a pyeong, and 50 million won was received. It was then agreed that if the remaining debt of 33 million won were paid on the others’ behalf, the land would be held in shares of two-thirds and one-third, and that the one-third share would be placed in a title trust, with registration taken directly from the company. In 1989 registration of the whole pre-split land was completed from the company; again the month is not given.

A provisional disposition forbidding disposal of the pre-split land was granted, and in 1989 the disposition was registered. The plaintiffs later took portions of the land. In 1994 a plaintiff was registered on plot 1; in 1992 Kim Chang-hyeon was registered on plot 2; in 1993 Kim Gap-sun was registered on plots 3 and 4.

A change of claim on appeal, and a 1992 judgment

On appeal the claim was exchanged. The claimant, by subrogation in sequence, now sought performance of the procedure for transfer of registration of the one-third share, on the ground that the title trust had been terminated. A judgment for the claimant was given in 1992, and around that time the judgment became final.

On an application based on that final judgment, a transfer of the one-third share in each of the plots was registered, and a correction was made reducing the transfer registrations in the plaintiffs’ names to a two-thirds share, so far as they conflicted with that result.

The comment then turns to the holding, and to the articles of the Civil Procedure Act that the notes set out.

The basis of the claim, and Articles 262 and 714

The holding, as the notes record it, is that the right preserved by a provisional disposition and the right that is the subject-matter of the action on the merits need not match with strict identity. So long as the identity of the basis of the claim is recognized, the preserving effect of the disposition extends to the right in the merits action. In a dispute about the same life facts, or the same economic interest, a change in the purport or the cause of the claim that is only a difference of method of resolution does not change the basis of the claim.

On that view, when in the action on the merits the purport and the cause were changed from a claim to cancel registration, on the ground that the cause was invalid, to a claim for transfer registration on termination of a title trust, this was only a different way of resolving a dispute about the same life facts or the same economic interest. The basis of the claim was not changed. Because the change of claim was lawful within that limit, the effect of the provisional disposition, which had preserved the earlier right to cancellation, also extended to preservation of the later right to transfer. Those parts of the transfer registrations in the plaintiffs’ names that conflicted with the disposition and with the judgment on the merits therefore had no effect in the relationship with the plaintiffs.

Article 262 of the Civil Procedure Act, as set out, allows a plaintiff to change the purport or the cause of the claim until the close of argument, so long as the basis of the claim is unchanged, except where the change would markedly delay the proceedings. Article 714 provides that a provisional disposition concerning the subject-matter of a dispute may be granted when a change in the present state would make it impossible, or markedly difficult, to enforce a party’s right; a disposition may also be granted to fix a temporary position regarding a disputed legal relation, though only to avoid marked harm to a continuing legal relation, to prevent imminent violence, or for other necessary reasons named in the notes. The same Korean report, at fuller length, is on CampusDown.

Sources

1. A student case comment on pre-split forest land sold in 1984 and resold, still unregistered, in 1988, with sums left as the notes give them and months supplied only where the notes state them.
2. A one-third title trust, a provisional disposition in 1989, later registrations by the plaintiffs, and a 1992 judgment after a change of claim.
3. The holding that a shift from cancellation to transfer registration did not change the basis of the claim, with Civil Procedure Act Articles 262 and 714 as set out in the notes.

Last updated: 14 November 2026