[2] In a case where an owner of real estate has made an investment in the ownership of real estate under a partnership agreement (partnership agreement), but it has yet to be registered as such, whether he/she may exercise his/her ownership against a third party who is not a partner (affirmative)

[3] In a case where an association whose business purpose is a partnership or a partnership property acquires the ownership of real estate as a partnership property, whether the real estate is a partnership property (affirmative), and in a case where the partnership did not make a partnership property but made a joint registration under the name of each partner, whether the partnership held a title trust for each share to the partnership members (affirmative)

[4] The case holding that, where an enterprise for the purpose of a partnership business acquired real estate as property of a partnership but completed a joint registration under a name other than a joint ownership registration, and one of the union members withdraws from a partnership and completed a registration of ownership transfer for the remaining union members, since the main text of Article 4 (2) of the Act on the Registration of Real Estate under Actual Titleholder's Name is applied, the ownership of real estate in the pertinent union's name is not owned by it, such act cannot be deemed as a fraudulent act detrimental to general creditors of the pertinent union

[2] Where an owner of real estate has decided to invest in the ownership of real estate under a partnership agreement, but it has yet to be registered as the ownership of the real estate and it has not been registered as the partnership's partnership's partnership's partnership's partnership's partnership's partnership's joint ownership, it can be said that an obligatory right and duty arises between the partnership and the partnership's partnership's obligation to transfer the ownership to the partnership or to accept the use thereof. However, since there is no ground that the real estate in relation to a person other than the partnership agreement's party belongs to partnership's partnership's partner's relationship

[3] Article 271(1) of the Civil Code provides that "if several persons own an object as a partnership under the provisions of law or contract, the right of a partnership-owner shall be owned as a whole." (This is a mandatory provision under the Real Rights Act, and therefore, it shall not be deemed to own an object as a partnership-ownership if the partner who is a partner of a partnership owns an object as a partnership-ownership." (Article 704 of the Civil Code provides that "the investment and other property of a partnership-ownership shall be the partnership-ownership." Thus, if a partnership-ownership of an object as a partnership-ownership of an object of partnership-ownership of an object as a partnership-ownership, it shall be naturally owned by the partnership-ownership pursuant to the provisions of Article 271(1) of the Civil Code (Article 187 of the Civil Code) and there is no relation with "acquisition of a real right under the provisions of law." Therefore, if a partnership-ownership has not been registered as a partnership-ownership ownership transfer by a juristic act, it shall be regarded as a partnership-ownership-ownership's ownership ownership.

[4] The case holding that if an enterprise for the purpose of the business partnership acquired real estate as property of a partnership, but registered a joint ownership under the name of a partner who is not a joint ownership registration, such joint ownership registration is merely a nominal trust for each partner, and since the main text of Article 4 (2) of the Act on the Registration of Real Estate under Actual Titleholder's Name is applied to the registration of transfer of ownership in the name of a partner who is a title trustee, and thus the ownership of such real estate is null and void, it cannot be deemed as a responsible property for general creditors' joint security, and therefore even if one of the members withdraws from the partnership and completed a registration of transfer of ownership for the remaining members, it cannot be deemed as a result of a decrease in the partner's responsible property, and therefore, it cannot be deemed as a fraudulent act detrimental to the general creditor, and it cannot be deemed that he had an intent to know.

1. Summary of the judgment below

According to the reasoning of the judgment below, the court below rejected the defendants' assertion that the co-defendant 1 and the defendants' share in the site of this case were held in title trust because the title trust itself is null and void pursuant to Article 4 (2) of the Act on the Registration of Real Estate under Actual Titleholder's Name because the title trust itself is not owned by the co-defendant 1 and it is not owned by the co-defendant 1, and therefore, even if the co-defendant 1 withdraw from the association and concluded a sales contract with the defendants and completed the registration of ownership transfer in the future with the defendants, it does not result in the decrease in the liability property of co-defendant 1, and this does not result in the reduction of the liability property of the co-defendant 1, and this does not constitute the remaining obligation of the co-defendant 1 and the defendants' co-defendant 1's share in the site of this case as the co-defendant 1 and the defendants' share were not returned to the union members by reason of the following reasons.

In other words, as to whether the site of this case, which is the premise of the defendants' assertion, naturally constitutes a joint defendant 1 and the defendants' property under the provisions of law, it cannot be deemed that the provision of Article 271 and Article 704 of the Civil Act constitutes a "acquisition of real rights under the provisions of law" under Article 187 of the Civil Act. Thus, in order to establish a joint ownership as to the real property of a cooperative, the joint ownership registration is required by all union members, and Articles 271 and 704 of the Civil Act require the agreement between union members as a voluntary provision and the agreement between union members. Thus, as long as the ownership transfer registration as to the site of this case has been completed with the joint defendant 1 and the defendants' joint ownership transfer registration as to the site of this case, the site of this case cannot be the joint defendant 1 and the defendants' joint ownership registration as to the land of this case without any specific agreement between the defendant 1 and the defendants at the time of the joint ownership transfer registration as to the land of this case. Furthermore, the joint defendant 1 and the defendants' joint ownership registration as to the land of this case did not exist.

2. The judgment of this Court

However, the above judgment of the court below is hard to accept.

A. In a case where several persons jointly purchase real estate, the legal relationship between the buyers is merely a co-ownership, and the seller bears the obligation to transfer the ownership of the share to the purchaser. There may be cases where the seller purchased from the partnership that is its several members, and the seller bears the obligation to transfer the ownership of the share to the partnership (see Supreme Court Decision 94Da54894 delivered on September 15, 1995, etc.). On the other hand, if the owner of real estate has decided to invest the ownership of the real estate under the partnership agreement, but it is still registered as its ownership, and it is not registered as its partners and it is not registered as its partners, the seller has the obligation to accept the obligation to transfer the ownership of the real estate to the partnership or the use thereof. However, since there is no ground to view that the real estate belongs to the partnership agreement with a person who is not a partner in the partnership agreement, it is still entitled to exercise the ownership of a third party as an owner who is not a partner (see Supreme Court Decision 90Da16316 delivered on December 16, 1997, 197).

However, Article 271(1) of the Civil Act provides that "if several persons own an article as a partnership by the provision of law or contract, it shall be owned by all together property." (This is a mandatory provision under the Real Rights Act, and therefore, if a partner who is a partner of a partnership owns an article, it shall not be deemed to own an article as a partnership.)" Article 704 of the Civil Act provides that "the contribution or other property of a partnership shall belong to the partnership." Thus, if a partnership for business purpose acquires the ownership of an article as a partnership or partnership property, it shall be naturally owned by the partnership pursuant to Article 271(1) of the Civil Act. (This is not related to "acquisition of a real right under the provision of law" as provided in Article 187 of the Civil Act (the acquisition of real property by a partnership is required by a juristic act as well as the registration of transfer of ownership by a partnership). However, if a partnership association does not make a registration of combination's share under its name, it shall be deemed that each partner's share is registered under 975.5.

However, in light of the fact that joint Defendant 1 and the Defendants jointly purchased the instant land without any specific agreement before entering into the instant partnership agreement, and even if they subsequently concluded the instant partnership agreement, they did not jointly own the instant land, it is reasonable to deem that they agreed to jointly own the ownership relationship between Defendant 1 and the Defendants at the time of purchase of the instant land, and that they agreed to jointly own the instant land at the time of joint Defendants 1 and the Defendants. However, in Article 2-2 (1) of the same partnership agreement (No. 2-2 of the evidence No. 2), the above Defendants purchased the instant land as joint investment and agreed to operate the housing construction business as in the above equity ratio and mutually agreed to operate the housing construction business, and the real estate sales contract (No. 2-1 of the evidence No. 2) was merely a joint ownership agreement with the Defendants at the time of the conclusion of the instant trust agreement and the Defendants’ joint ownership of the instant land after the conclusion of the trust agreement with the Defendants, and thus, it is clear that each of the instant land was jointly owned with the Defendants at the time of the purchase of the instant land.

B. Furthermore, the registration of transfer of ownership as to the shares in the instant site in the co-defendant 1's name was enforced after the Act on the Registration of Real Estate under Actual Titleholder's Name (Enforcement from July 1, 1995, hereinafter "Real Estate Real Name Act"), and the real right to real estate was registered in the name of the title trustee under the title trust agreement between co-defendant 1 and the partnership for the purpose of the same business and the Defendants and co-defendant 1. As such, the main text of Article 4(2) of the Real Estate Real Name Act applies, and the registration of transfer of ownership in the name of the title trustee is null and void. However, under the proviso of Article 4(2) of the same Act, the co-defendant 1 who is the title trustee and the Defendants become the parties to the instant site in the contract for the acquisition of the real right to the shares in the instant site and the dialogue between Co-Defendant 1 and the partnership for the purpose of the same business comprised of co-defendant 1 and the Defendants and co-defendant 1 are valid.

However, if the main text of Article 4 (2) of the same Act applies to the share in the site of this case and the registration of transfer of ownership with one co-defendant is null and void, that share in the site of this case is not owned by him, and thus, it cannot be deemed as a liability property for ordinary creditors to be offered as joint security. Accordingly, even if Co-defendant 1 withdraws from the partnership established on April 23, 1998 for the reason that he failed to make an investment under the business agreement of this case on the ground that he and co-defendant 1 withdraws from the partnership established on April 23, 1998, and entered into the business change agreement of this case where the co-defendant 1 withdraws from the partnership, and the remaining co-defendant 1 made one-third of the defendants's shares in the partnership as co-defendant 1 and 1/4 of his own name among the shares in this case on April 23, 1998 on the following day, he cannot be deemed as a fraudulent act that caused the decrease of property of the co-defendant 1, which is the debtor.

Ultimately, as long as the facts acknowledged by the court below revealed as follows, the proviso of Article 4 (2) of the same Act is not revealed to be valid, [In light of the 2, 3, or witness 1 of the first instance court’s witness of the items of a real estate sales contract (Evidence No. 2-1 of No. 1 of No. 2), the dialogue of a seller is deemed to have been substantially involved in the construction permission relationship of the instant site.] The registration of transfer of ownership based on the instant sales contract between Co-Defendant 1 and the Defendants cannot be deemed to constitute a fraudulent act.

C. Nevertheless, the court below rejected the assertion of the joint Defendant 1 and the Defendants on the premise that all of the instant land including the instant shares are co-defendant 1’s own property at the time of concluding the instant sales contract with the co-defendant 1 only for the reasons indicated in its reasoning, on the ground that it is without merit, and accepted the Plaintiffs’ second preliminary claim as to the instant land. Thus, the judgment below erred in the misapprehension of legal principles as to the ownership relation of partnership property and the title trust and fraudulent act, and it erred in the misapprehension of the rules of evidence or failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

The part of the grounds of appeal assigning this error is with merit.

3. Therefore, without examining the remainder of the grounds of appeal, the part against the Defendants among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)