[2] In a case where a partnership is dissolved and only the distribution of remaining assets remains, whether it is possible to claim a distribution of the remaining assets without going through the liquidation procedure (affirmative), and whether the ownership of the partnership’s property belongs immediately to each partner (negative)

[3] Where one of the partnership members withdraws from the partnership, the ownership of the partnership's property (i.e., the sole ownership of the other partnership member), and where the partnership's property is real estate, whether the change in ownership takes effect by registering the ownership of the remaining union member's sole ownership (affirmative)

1. Plaintiff’s ground of appeal

A request for registration of ownership transfer for the restoration of a true name is sought for the restoration of a true name by ownership in lieu of seeking the cancellation of ownership registration against the present registered titleholder. Thus, in a case where a person who did not have ownership registered in his own name and did not acquire ownership under the law can file a request for the cancellation of ownership transfer for the restoration of a true name in lieu of seeking the cancellation of ownership registration against the present registered titleholder (see, e.g., Supreme Court Decision 2002Da64148, May 13, 2003).

According to the reasoning of the judgment of the court below, the plaintiff and the non-party 1 concluded a partnership agreement on August 25, 199 (hereinafter "this case's partnership agreement"), and they purchased the land of this case from the non-party 2 for the purpose of joint business use, and completed the registration of ownership transfer for direct title trust on October 21, 199 for the purpose of joint business use. Accordingly, the land of this case is not registered under the plaintiff's name and the plaintiff cannot be deemed to have acquired the ownership of the land of this case by law. Thus, even if the registration of the defendant's name violates the law on the registration of real estate under the actual right holder's name, the plaintiff cannot file a claim against the defendant for the registration of ownership transfer for the reason of the cancellation of the partnership agreement or the restoration of the real right holder's registration.

The judgment of the court below to the same purport is just in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as to the registration of transfer of ownership on the ground of the cancellation of a trade agreement, the title trust or the restoration

2. As to the Defendant’s ground of appeal

The court below, based on its adopted evidence, found that the Plaintiff performed the duty of investment under the instant partnership agreement, but Nonparty 1 failed to perform the duty of investment. Nonparty 1 raised funds for the reconstruction of the instant rest area building and the construction of the instant gas station building as collateral for each of the instant real estate owned by the instant association. The Plaintiff’s repayment of KRW 1.45 million out of the loan was made; the Plaintiff filed a complaint against Nonparty 1 on the ground that the Plaintiff did not perform the duty of investment under the instant partnership agreement and belonged to the construction cost in the process of rebuilding and construction of the instant building; on July 11, 2003, Nonparty 1 notified Nonparty 1 that the instant partnership would terminate the instant partnership agreement; on the other hand, Nonparty 1 would not legally withdraw from the instant partnership; on the premise that Nonparty 1 would not have been dissolved on the ground that the Plaintiff would not have been subject to dissolution of the said association’s remaining property on the ground that it would have been distributed to Nonparty 1, 2006.

In a case where a partnership is dissolved, unless there is a separate agreement between the parties, the remaining assets and their values to be distributed to the partnership members shall be determined as at the time the liquidation procedures are completed. Thus, in principle, it shall not be permitted to claim a distribution of the remaining assets under the condition that the liquidation procedures are not completed. However, in a case where the partnership does not dispose of the remaining assets as the remaining assets of the partnership and only distribution of the remaining assets remains, each union member may immediately claim a distribution of the remaining assets to the union members who own the remaining assets within the scope of their ratio of distribution of the remaining assets (see Supreme Court Decisions 97Da31472, Dec. 8, 1998; 9Da35713, Apr. 21, 200; 9Da35713, Apr. 21, 2000). However, each union member has the right to claim a distribution of the remaining assets in excess of the ratio of distribution, and the ownership of the properties of the partnership members should not be attributed immediately to each union member.

In addition, if one member withdraws from two cooperatives, the partnership relation is terminated, but unless there are special circumstances, the partnership relation is not dissolved, and the property belonging to the partnership belongs to the sole ownership of the remaining member (see, e.g., Supreme Court Decisions 98Da5458, Mar. 12, 1999; 2004Da49693, Mar. 9, 2006; 2004Da49709, Mar. 9, 2006; 2004Da4969709, etc.). If the property of the partnership is real estate, the cause of the change in the real right is caused by a juristic act which is called withdrawal from the partnership relation, and it takes effect only when the ownership is registered with the content that the remaining

According to the facts acknowledged by the court below, since the building of this case was completed by the combination of this case and its ownership was originally reverted to the association of this case, even if the association of this case does not need to take a separate liquidation procedure after dissolution or Nonparty 1 withdraws from the association of this case, which is the association of this case, it cannot be deemed that the ownership of the building of this case was immediately reverted to the plaintiff without registration, and the building of this case still remains as the plaintiff and Nonparty 1. Therefore, even if the plaintiff who did not have the ownership registered under his own name and did not acquire the ownership solely by law was a title trust agreement null and void under the Act on the Registration of Real Estate under Actual Titleholder's Name, the defendant cannot file a claim against the plaintiff for the implementation of the ownership transfer registration procedure under the name of the plaintiff directly due to the restoration of real name.

Nevertheless, the lower court determined that the Plaintiff can file a claim for the registration of ownership transfer on the ground of the restoration of authentic title, on the premise that the ownership of the instant gas station building reverts to the Plaintiff. In so doing, the lower court erred by misapprehending the legal doctrine on the reversion of partnership property or the registration of ownership transfer on the ground of the restoration of authentic title, thereby adversely affecting the conclusion of the judgment. The ground of appeal

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Min Il-young (Presiding Justice)