[1] Whether the rights and obligations that an individual acquires before a church is established as an unincorporated association belongs to the church immediately after its establishment (negative), and whether the legal principles of the company during its establishment apply mutatis mutandis (negative)

[2] Person holding the right to use and benefit from real estate for the purpose of transfer of real estate (=person who has established the security

[1] Where a church has its substance and is formed into an association which is not a juristic person, the rights and duties that the representative of a church acquired for the church shall belong to the church, but the rights and duties that an individual acquired before the church is established as an association which is not a juristic person because it does not yet have the substance shall not immediately belong to the church which is not a juristic person, even if it is for the church to be established in the future. In addition, in light of the concept and legal nature of the company during the establishment, the legal principles of the company during the establishment shall not apply to the church which is an association which

[2] In a case where a real estate is generally transferred for the purpose of collateral security, barring any special circumstance, the right to use and benefit from the real estate is the debtor, so the mortgagee may not claim compensation for damages equivalent to the rent or a claim for return of unjust enrichment on the ground that the debtor, who has a legitimate right to use and benefit from the real estate, or who succeeded to the right to use and benefit from the real estate,

[1] Article 31 of the Civil Act / [2] Article 372 of the Civil Act / [2]

[2] Supreme Court Decision 87Meu255 delivered on November 22, 1988 (Gong1989, 21) Supreme Court Decision 2001Da40213 Delivered on December 11, 2001 (Gong2002Sang, 263)

Plaintiff church

Defendant (Seoul District Court Decision 200Na4888 delivered on August 1, 200)

Seoul High Court Decision 2006Na106585, 106592 decided May 16, 2007

The part of the judgment of the court below regarding the main lawsuit is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeals are dismissed.

1. Determination on the main part of the lawsuit

A. In full view of the admitted evidence, the court below decided that the non-party 1 was to establish the plaintiff church, which is a branch church (non-party 1; hereinafter referred to as the "Plaintiff") around October 2002, and that the non-party 1 purchased the fourth floor (hereinafter referred to as the "building of this case") from the non-party 3, who is an agent of the non-party 2 on December 17 of the same year, in order to raise the balance of the sale price, and that the non-party 1 acquired the right and duty of the plaintiff church from the defendant (hereinafter referred to as the "Defendant"), and that the non-party 1 was merely an owner of the non-party church to whom the right and duty of the plaintiff church was transferred, and that the non-party 1 acquired the ownership transfer registration of the church of this case on April 9, 200, under the name of the non-party 1, which was an establishment of the church of this case, and that the non-party 24th of the same month established its articles of incorporation.

B. However, we cannot accept the above decision of the court below for the following reasons.

(1) First of all, a company during the process of incorporation is a school concept to explain the rights and duties acquired in the process of incorporation by promoters through acts necessary for the incorporation of the company at the same time as the establishment of the company, and the company during the process of incorporation is established only when promoters have acquired at least one share of shares (see, e.g., Supreme Court Decisions 90Nu2536, Dec. 26, 1990; 93Da50215, Jan. 28, 1994). In order to establish a company during the process of incorporation, promoters shall prepare the articles of incorporation and acquire one share of shares or more, and have an independent substance of the company. In this regard, the legal nature of the company during the process of incorporation shall be deemed an unincorporated association. Accordingly, any rights and duties acquired before the incorporation of the company cannot be attributed to the company during the process of incorporation, which belongs to the promoters or promoters, and the company's act of acquisition at least one share of shares after being declared to the company (see, e.g., Supreme Court Decision 250092Da194.

In addition, a church is established as a non-profit corporation under the Civil Act after obtaining permission from the competent authority and completing registration for incorporation, but even if the church does not acquire the legal personality, if it acts as a religious organization such as forming an aggregate for the purpose of common religious activities, establishing rules and other norms, organizing a decision-making agency and a representative, etc. and conducting services, it shall be established and continued as an unincorporated association (see Supreme Court en banc Decision 2004Da37775, Apr. 20, 2006, etc.). In case where a church has such substance and is formed as an association which is not a juristic person, the rights and duties acquired by the representative of a church for the church shall belong to the church, but the rights and duties acquired by an individual who is the subject of establishment before it is established as an unincorporated association shall not be attributed to the church which is not a juristic person, even if it is for the church to be established in the future. In addition, in light of the concept and nature of the above company during its establishment, it shall not be applied by applying the legal principles at the stage before its establishment.

However, according to the records, the plaintiff church appears to be an association which is not a juristic person, but an association which is not a juristic person, after obtaining permission from the competent authorities and making registration of incorporation. Meanwhile, according to the facts duly recognized by the court below, the plaintiff church moved in the building of this case on March 2003 and opened the art on the 23th of the same month. On the same day, the plaintiff church made its articles of association on April 4, 2004, and decided to approve the church's articles of association and to appoint the representative of the church to appoint the non-party 1 as the representative. At the time of concluding the sales contract on the building of this case on December 17, 2002, the plaintiff church was not yet established as an association which is not a juristic person, and therefore, it cannot be said that the sales contract which the non-party 1 concluded on behalf of the plaintiff church or that its contractual status belongs to the plaintiff church immediately without any separate transfer act.

Nevertheless, the court below judged that the non-party 1 entered into the instant sales contract on behalf of the plaintiff church or that the status of the instant sales contract belongs to the plaintiff church without any separate transfer act. The court below erred in the misapprehension of legal principles as to the establishment of the church which is an unincorporated association and the company in the process of its establishment, and it is obvious that such illegality affected the judgment.

(2) Furthermore, a creditor’s transfer of real rights to real estate to secure the performance of an obligation does not constitute a title trust agreement which becomes null and void under Article 4 of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Act”).

The court below acknowledged that the registration of ownership transfer under the name of the defendant for the building of this case was made to secure the loan to the non-party 1, but held that the title trust agreement and the registration based thereon between the defendant and the non-party 1 were invalidated. However, insofar as the registration of ownership transfer under the name of the defendant for the building of this case was made to secure the repayment of the claim as duly admitted by the court below, the legal effect of invalidation due to the title trust agreement does not occur since it constitutes Article 2 subparagraph 1 (a) of the Act. Thus, the court below held that the registration of ownership transfer under the name of the defendant was null and void is erroneous in the application of the law or in conflict with the reasons, and such

2. Judgment on the counterclaim part

The court below rejected the defendant's counterclaim that the plaintiff church is obligated to deliver the building of this case to the defendant and return unjust enrichment equivalent to the profits from use since the plaintiff church is owned by the defendant, since the plaintiff church is obligated to deliver the building of this case to the defendant, on the ground that the registration of ownership transfer was made in the name of the defendant for the purpose of securing the defendant's claim against the loan of the building of this case, and therefore, the defendant cannot be deemed the owner of

A mortgagee who has completed a registration of ownership transfer of real estate for the purpose of securing loan claims shall acquire the ownership of the secured real estate only through liquidation procedures prescribed in Articles 3 and 4 of the Provisional Registration Security Act. In general, in cases where real estate is transferred for the purpose of securing bonds, barring any special circumstance, the right to use and benefit from the secured real estate belongs to the debtor, and barring any special circumstance, the mortgagee may not file a claim for compensation for damages equivalent to the rent or a claim for return of unjust enrichment on the ground that the debtor who has a legitimate right to use and benefit from the secured real estate or the successor to the right to use and benefit from the secured real estate has not been made (see, e.g., Supreme Court Decisions 87Meu255, Nov. 22, 198; 2001Da40213, Dec. 11, 200

According to the facts duly admitted by the court below, the registration of transfer of ownership in the name of the defendant with respect to the building of this case was completed for the purpose of securing the loan claims against the non-party 1. Meanwhile, the non-party 1 purchased the building of this case in order to use it as the plaintiff church, appointed as the representative of the plaintiff church, and possessed and used the building of this case as the plaintiff church of this case until now, the plaintiff church is legitimately transferred the building of this case from the non-party 1, and there is no evidence to deem that the defendant, the mortgagee of this case, acquired the ownership of the building of this case by following the liquidation procedure prescribed by the Provisional Registration Security Act, and therefore, the defendant cannot seek delivery of the building of this case to the plaintiff church or seek the return of unjust enrichment equivalent to the profit from use.

In the same purport, the court below's rejection of the defendant's counterclaim is justified, and there is no error of law such as incomplete deliberation or misapprehension of legal principles.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal as to the principal lawsuit, the part concerning the principal lawsuit among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining grounds of appeal are dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Ji-hyung (Presiding Justice)