[제3자이의사건][하집1985(3),1]
Termination of a real estate title trust agreement and ownership attribution relationship
Even if the title trust contract is terminated, the effect of the termination is not retroactive and is merely effective in the future, and it cannot be viewed that the ownership of the real estate held in the title trust is naturally returned to the truster. However, since the trustee bears the duty to transfer the registration name due to the termination of the trust to the truster, the ownership in the external relationship still exists until the trustee moves the registration name to the truster.
Article 186 of the Civil Act
[Plaintiff-Appellant] 112 pages 112, Non-I Civil Code No. 320, 283 No. 690, 880)
Korean Automobile Sales Association, an incorporated association
same-sex Construction Corporation
Seoul District Court Branch of the Seoul District Court (84Gahap672)
The appeal is dismissed.
Expenses for appeal shall be borne by the defendant.
On February 1, 1984, the Defendant, based on an executory exemplification of the judgment in respect of the claim for the takeover amount against the Korea Automobile Sales Association, the Seoul District Court 81 Gohap1228, which is an incorporated association, shall not be subject to compulsory execution against the stores listed in the attached list.
The costs of lawsuit shall be borne by the defendant and a declaration of provisional execution.
The original judgment shall be revoked.
The plaintiff's claim is dismissed.
The judgment of the court that the costs of lawsuit shall be borne by the plaintiff of the first and second instance court.
1. Judgment on the main safety defense
The defendant asserts that the lawsuit of this case should be dismissed as an unlawful lawsuit because the executive officers of the non-party 1 Korean Automobile Transaction Association, using the seal of the plaintiff corporation as the representative of the plaintiff corporation and the defendant filed the lawsuit of this case in the name of the plaintiff corporation. Thus, according to the statement of No. 15 (decision) and the statement of the letter of delegation in the records, the plaintiff corporation made a recommendation for dissolution in the general meeting of members on July 3, 1978 and appointed the non-party 1 as the liquidator at the same time as the above Kim Jong-soo as a liquidator on July 30, 1984, but he neglected to perform his duties as a liquidator including the registration of the liquidator. Thus, it was decided on June 30, 1984 that the non-party 1 was dismissed as the representative of the plaintiff corporation and appointed the non-party 2 as the liquidator of the plaintiff corporation and confirmed all the litigation acts until then. Thus, the plaintiff's error in this case was justified.
2. Judgment on the merits
In order to establish and sell the above 1, 2, 3, 4, 5, 6, 10, 7, 10, 7, 10, 10, 10, 12, and 14, 9, 7, 9, 7, 10, 9, 7, 10, 9, 7, 10, 10, 9, 10, 9, 14, 9, 9, 9, 17, 9, 9, 9, 17, 4, 9, 7, 9, 9, 7, 9, 9, 7, 9, 9, 9, 9, 1, 4, 7, 1, 1, 2, 3, 1, 3, 1, 3, 1, 2, 3, 3, 3, 1, 3, 4, 1, 3, 3, 1, 4, 1,2,2,
Thus, the plaintiff corporation is established by the new association and succeeds all rights and duties to the new association, but the liquidation procedure has not yet been completed, and it still remains an incorporated association separate from the new association. Since the registration of preservation of ownership has been completed in the name of the plaintiff corporation, which is the old association, due to the title trust of the new association, the non-party new association still owns it externally, but the defendant's compulsory execution against the store of this case based on the original copy of the judgment of provisional execution with executory power against the non-party new association is unreasonable.
Although the defendant, as a creditor of the new association on May 1, 1985, held that the execution of the defendant is justifiable, but the effect of the termination of the title trust contract is not retroactive, and the ownership of the real estate in title trust is not returned to the new association as a matter of course. However, since the plaintiff corporation, the trustee corporation, bears the duty of transferring the title of the registration due to the termination of the trust to the new association, the title of the title trust is still owned by the plaintiff corporation, the trustee, and the title of the registration is still transferred to the new association. Thus, the defendant's above assertion is groundless.
Therefore, since the compulsory execution of this case by the defendant is improper, the plaintiff's claim seeking repayment is justified, and the court below authorized the decision of the suspension of compulsory execution as of May 25, 1984 to 84Ka483, and therefore, it is reasonable to dismiss the defendant's appeal against the original judgment and the costs of appeal are assessed against the defendant.
Judges Kim Jong-ju (Presiding Judge)