[2] Whether the active property owned by one company may be assessed as active property of one shareholder and included in the division of property (negative)

[2] Even if one of the married couple actually controls a company (so-called “one-person company”) with the property owned by the company, the property owned by the company can not be evaluated as the property of the individual and included in the subject of division of property. The property of the company, such as a stock company, etc. consists of various assets, liabilities, etc., and the property value of the company can be calculated based on the individual’s property belonging to the one-person shareholder after a comprehensive evaluation is made. Therefore, in the divorce, barring any special circumstance, the value of the company’s individual property cannot be considered as the active property of one-person shareholder as it is, barring special circumstances

A. As to the scope of the property to be divided

In a case where one spouse bears the obligation against a third party during marriage, the obligation accompanied by the formation or maintenance of the common property among the obligation is subject to division of property in divorce. In addition, the obligation to return the lease deposit owed by one spouse with respect to the real estate acquired through mutual cooperation among the married life shall be subject to division of property as the obligation accompanied by the formation of property during marriage, barring special circumstances (see Supreme Court Decision 96Meu1397 delivered on June 11, 199).

According to the records, the plaintiff acquired through the registration of transfer of ownership under his name on May 4, 2007, the plaintiff leased the Heak Village apartment (hereinafter referred to as "the apartment of this case") from the third party on August 23, 2009, the lease deposit amount of KRW 65 million in the Jung-gu, Nowon-gu, Seoul Special Metropolitan City (hereinafter referred to as "the apartment of this case") which was acquired by the plaintiff through the registration of transfer of ownership under his name. Thus, barring any special circumstance, the obligation to return the deposit due to the lease of this case shall be included in the property subject to division as the plaintiff's passive property.

Nevertheless, the court below erred by misapprehending the legal principles as to the scope of property subject to division of property, thereby adversely affecting the conclusion of the judgment, without any explanation of special circumstances. The ground of appeal assigning this error is with merit.

B. As to the title trust of Nonparty 1’s share

The lower court rejected the Plaintiff’s assertion that, in full view of the circumstances as indicated in its reasoning, the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) held title trust on the non-party 1, his/her own partner, for each of the land 95/2849 shares and 751-2 shares of the same Ri 751-4, 751-7 among the land located in the Sungsung-si, Seosung-si, Seosung-si, Seosung-si, Seosung-si, Seosung (hereinafter “Defendant”).

In light of the relevant legal principles and records, the above judgment of the court below is acceptable as it is in accordance with the reasonable free evaluation of evidence by fact-finding judges. In so doing, it cannot be said that there is no violation of the rules of evidence as alleged in the grounds for

2. Judgment on the defendant's appeal

A. As to the scope of the property subject to division with respect to the non-party 2 corporation

Even if one of the married couple actually controls a stock company (so-called “one-person company”), the property owned by the company may not be evaluated as the property of the individual and included in the property division. The property of the company, such as the stock company, etc. consists of various assets and liabilities, etc., and the property value of the company, which belongs to the one-person shareholder, after the comprehensive evaluation thereof, may be calculated as the property value belonging to the one-person shareholder. Therefore, in the divorce thereof, barring any special circumstance, the individual property value of the company cannot be considered as the active property of the shareholder, as it is, as the property division.

In determining the property subject to division of property of this case, the lower court, solely on the ground that the Defendant has de facto control over the non-party 2 corporation, included 859/2849 shares in the land of Yeosung-si, Seosung-si, 751-2, 751-3, 751-4, and 751-7, respectively, and 751-1, 3 above-dong and B-dong buildings of this case and office lease deposits of 220-2, 300,000 won, which are directly recognized as the Defendant's active property and included in the property subject to division.

In light of the above legal principles, the above determination by the court below is erroneous in the misapprehension of legal principles as to the scope of property subject to division of property, or by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The defendant's ground of appeal pointing this out is with merit.

B. As to the remaining grounds of appeal

The Defendant’s remaining grounds of appeal on division of property are merely grounds for the lower court’s deliberation of evidence and fact-finding, which are the exclusive authority, and thus cannot be justified grounds of appeal.

Furthermore, in light of the relevant legal principles and records, the judgment of the court below is not erroneous in the rules of evidence that affected the conclusion of the judgment, as alleged in the grounds of appeal.

C. As to the appeal on the part other than the division of property

The defendant sought the reversal of the entire judgment of the court below as the purport of the appeal, but the petition of appeal does not contain any grounds of appeal, and only there are claims as to the division of property among the judgment below, and no other mentions about the remainder.

Therefore, it cannot be deemed that there is a legitimate appellate brief concerning the remainder except for the division of property among the judgment below.

3. Conclusion

Therefore, the part of the judgment below regarding division of property is reversed, and that part is remanded to the court below for a new trial and determination, and the defendant's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)