Plaintiff (Attorney Kim Si-soo, Counsel for the plaintiff-appellant)

Defendant 1 and four others (Law Firm Barun, Attorneys Lee Yong-young, Counsel for the defendant-appellant)

Defendant 6 (Law Firm Mad Cow, Attorneys Park Jong-soo, Counsel for defendant-appellant)

March 25, 2010

Seoul Western District Court Decision 2008Gadan95680 Decided October 9, 2009

1. The part against Defendant 6 in the judgment of the first instance shall be revoked;

2. The plaintiff's claim against the defendant 6 is dismissed.

3. All of the Plaintiff’s appeal is dismissed.

4. The costs of appeal between the Plaintiff and Defendant 1, 2, 3, 4, and 5 and the total costs of appeal between the Plaintiff and Defendant 6 are all borne by the Plaintiff.

1. Purport of claim

Defendant 1: With respect to Defendant 6’s share of 897.03/1,705 out of the land indicated in the separate sheet; Defendant 6’s share of 472.96/1,705 out of the land indicated in the separate sheet is subject to sale on August 5, 198; Defendant 6’s share transfer registration procedure based on share agreement on April 22, 1991; Defendant 3, 2, and 4’s share transfer registration completed as of December 29, 198 with respect to the share of 1/4 out of the land listed in the separate sheet with respect to Defendant 1’s share of 1/4 out of the land listed in the separate sheet with respect to the Daejeon District Court Daejeon District Court Daejeon District Court Daejeon District Court Decision 72163, Dec. 29, 198; Defendant 5’s share of 470.78/1,705 out of the share of the land listed in the separate sheet with respect to Defendant 1.

2. Purport of appeal

A. The plaintiff in the judgment of the court of first instance shall revoke the part against the plaintiff. The defendant 1 shall implement the procedure for the registration of transfer of ownership on August 5, 198 with respect to the share of 897.03/1,705 among the land listed in the separate sheet to defendant 6; the defendant 1, defendant 3, 2, and 4 shall execute the procedure for the registration of cancellation of ownership transfer as to each share of 1/4 of the land listed in the separate sheet to the Daejeon District Court of Daejeon District as of December 29, 198 with respect to each share of 1/4 of the land listed in the separate sheet to the Daejeon District Court of Daejeon District as of December 29, 198, and the defendant 5 shall execute the procedure for registration of cancellation of ownership transfer as of each share of 470.78/1,705 out of the share of 2/4 share of the land listed in the separate sheet to the Daejeon District Court of Daejeon District.

B. Defendant 6: Revocation of the part against Defendant 6 among the judgment of the first instance court, and the plaintiff's claim corresponding to the above revocation is dismissed.

1. Facts of recognition;

A. The Plaintiff, Defendant 5, 6, Nonparty 1, and Nonparty 2 (hereinafter collectively referred to as Defendant 5, Nonparty 6, Nonparty 1, and Nonparty 2, together with Defendant 1, Nonparty 1, and Nonparty 2, have Defendant 6 purchase forest land 6,645 square meters (hereinafter referred to as “the entire land of this case”) owned by Defendant 1 (hereinafter referred to as “instant joint investment agreement”) and distribute the Plaintiff’s share at the ratio of its share to 600/2,010, Defendant 5’s share to 450/2,010, Defendant 6’s share to 460/2,010, and Nonparty 1’s share to 130/2,010, and Nonparty 2’s share to 370/2,010, and Nonparty 2’s share to 370/2,010 (hereinafter referred to as “instant entire land”).

B. Defendant 6 purchased the entire land of this case from Defendant 1 on October 11, 1998 pursuant to the joint investment agreement of this case for KRW 320,00,000 (hereinafter “the sales contract of this case”). around that time, the Plaintiff and Defendant 5, etc. agreed to title trust the entire land of this case with Defendant 2, 3, 4, and Nonparty 3 (hereinafter “Defendant 2, etc.”) on December 29, 198, and completed the registration of transfer of ownership in the name of Defendant 2, etc. as to each of the whole land of this case.

C. On April 22, 1991, the Plaintiff, Defendant 5, etc. drafted a document confirming their respective shares ratio (hereinafter “instant joint document”). The content is as follows.

Address: Chungcheongnam-gu (hereinafter referred to as "2 omitted") in Chungcheongnam-gu (2,010 square meters)

: Plaintiff 600, Defendant 5450, Defendant 6460, Nonparty 1130, Nonparty 2370.

I recognize and confirm each of the above shares of ownership.

D. Meanwhile, on the other hand, the entire land of this case was subject to registration conversion into 6,645 square meters of forest land on February 11, 1993, Daejeon (hereinafter 1 omitted), and thereafter, the entire land was divided into ① 2,329 square meters of forest land (hereinafter 3 omitted) on March 24, 1994, ② 2,61 square meters of forest land (hereinafter 4 omitted) on September 2, 1994 (hereinafter 1 omitted), and as a result, the area of the entire land of this case was reduced to 1,705 square meters of forest land (hereinafter 1 omitted).

E. On August 24, 1994, land Nos. 1 and 2 was incorporated into a high speed iron zone and completed the registration of entire co-owners' share transfer under the name of the Korea High-Speed Rail Construction Authority on November 8, 1994 for land No. 1; and the Korea High-Speed Construction Authority deposited the compensation for land No. 459,37,500 as compensation for land No. 12, Aug. 12, 1994 with the national bank account (Account Number omitted) of Defendant 2, one of the registered holders, and the compensation for land No. 497,537,500 as compensation for land No. 2, Oct. 19, 194 (hereinafter “instant compensation”).

F. Thereafter, on July 25, 1996, the registration of ownership transfer was completed on July 20, 1996 with respect to each one-fourth of the shares in the land in this case, among the land in this case, on July 25, 1996. On June 29, 2004, the registration of ownership transfer was completed on May 29, 2004 with respect to the shares in the non-party 3's one-fourths, and the registration of ownership transfer was completed on May 29, 2004 with respect to shares in the non-party 3's one-fourths, and on December 20, 206, the registration of ownership transfer was completed on December 11, 2006, on the part of the shares in the non-party 6's one-fourths, on December 36/1, 205, and on the part of the non-party 3's one-fourths one-fourths.

【Ground of recognition】 The fact that there has been no dispute, Gap 2, 3 through 7, Eul 2, 4, 7 through 10, and the purport of the whole pleadings and arguments

2. Determination as to the claim against Defendant 6

A. The plaintiff's assertion

1) The Plaintiff and Defendant 5 et al. agreed to jointly purchase the entire land of this case from Defendant 1 and to title trust it with a third party. Accordingly, they completed a share transfer registration for each of the entire land of this case under Defendant 2 et al. However, on April 22, 1991, the Plaintiff and Defendant 5 et al. agreed to confirm their respective shares among the entire land of this case and to complete the transfer registration for shares in the name of the Plaintiff, Defendant 5 et al. as to the entire land of this case. Defendant 6 is obligated to perform the registration procedure for ownership transfer registration for the remaining 472.96/1,705 shares (1,705 square meters x 60/2,010) equivalent to the Plaintiff’s shares among the land of this case (1,705 square meters x 60/2,010) under the above agreement.

2) Even if the Plaintiff and Defendant 5 et al. agreed to complete the registration of ownership transfer of their respective shares out of the entire land of this case on April 22, 1991, the Plaintiff and Defendant 5 et al. concluded a partnership agreement for the purpose of purchasing the entire land of this case and resale profits, and formed a partnership (hereinafter “the partnership of this case”). In light of the fact that disputes arose between the union members regarding the distribution of compensation for the first and second land, and that the land of this case was not disposed of until 20 years have passed since it was purchased from Defendant 1, it is not possible to dispose of all the land of this case and distribute profits from the land of this case to the Plaintiff on the basis of the intention of all the union members, and the association of this case was dissolved due to the impossibility of achieving the purpose, and the registration of ownership transfer within the period of 1/4 shares transfer in each of the above Defendants 2, 3 and 4 and the above Defendant 2 and the right to claim the registration of ownership transfer of the remaining property of this case to the Plaintiff.

B. Determination

1) Determination on the Plaintiff’s assertion No. 1

First, we examine whether the Plaintiff and Defendant 5 agreed to jointly purchase the entire land of this case and to complete the registration of transfer of shares equivalent to their respective shares in the name of the Plaintiff, Defendant 5, etc., the actual owner of the entire land of this case on April 22, 191.

6. The Plaintiff and Defendant 5, etc. were aware of their respective shares in the instant land under the name of the Plaintiff and Defendant 1’s 6. The Plaintiff and Defendant 5, etc. were not to purchase the entire land under the name of the Plaintiff and Defendant 1’s 6. The Plaintiff and Defendant 1 were to purchase shares in the instant land under the name of the Plaintiff’s 6. The Plaintiff and Defendant 1 were not to purchase the entire land, and to purchase the entire land under the name of the Plaintiff’s 6. The Plaintiff and Defendant 1 were to purchase the entire land under the name of the Plaintiff’s 6. The Plaintiff and Defendant 1 were to purchase each of the instant land under the name of the Plaintiff’s 1, 10, 24, and 27, and to purchase each of the instant land under the name of the Plaintiff’s 6. The Plaintiff’s 6. The Plaintiff and the 6. The Plaintiff’s 8.m. were to purchase the entire land under the name of the Plaintiff’s 6.m., and to sell the land to KRW 300,00.

2) Determination as to the Plaintiff’s assertion No. 2

Next, with respect to the Plaintiff’s claim for share transfer registration based on the distribution of residual property following the dissolution of the association, the Health Board and the Plaintiff’s claim against Defendant 6 against the Plaintiff’s share of 472.96/1,705 out of the instant land is sought to implement the procedure for ownership transfer registration based on the “share Agreement of April 22, 1991.” Since the Plaintiff’s claim is inconsistent with the purport of the claim, this part of the Plaintiff’s claim is without merit.

3. Determination as to the claim against Defendant 1

The court's explanation on this part is identical to the part concerning defendant 1 among the "decision on the claim against defendant 1 and 6" of the reasoning of the judgment of the court of first instance. Thus, this part is acceptable in accordance with the main sentence of Article 420 of the Civil Procedure Act.

4. Determination as to claims against Defendant 2, 3, 4, and 5

A. The plaintiff's assertion

The registration of ownership transfer of 1/4 shares in each of Defendant 2, 3, and 4 and the registration of ownership transfer of 470.78/1,705 shares in each of Defendant 2/4 shares in each of Defendant 2, and 3 as to the land of this case is null and void based on a title trust agreement. The plaintiff has a right to claim ownership transfer registration of 472.96/1,705 shares in each of the land of this case according to a share distribution agreement on April 22, 191 or the distribution of residual property following the dissolution of the association of this case, and Defendant 6 has a right to claim ownership transfer registration of this case against Defendant 1 pursuant to the sales contract of this case. Accordingly, the plaintiff sought the registration of ownership transfer of this case in each of Defendant 2, 3, 4, and 5 shares transfer in each of Defendant 2, 5 shares transfer in each of the two-fourth shares transfer in each of Defendant 6, and 1.

B. Determination

1) First, as alleged by the Plaintiff, whether the Plaintiff’s right to preserve the obligee’s subrogation right, namely, ① the Plaintiff’s right to share on April 22, 191 against Defendant 6, or ② as part of the distribution of residual property following the dissolution of the instant association, the Plaintiff’s right to claim ownership transfer registration of shares on the instant land exists.

A) Whether a claim for the transfer registration under a share agreement exists on April 22, 1991

First of all, as to whether the Plaintiff has the right to claim for the transfer registration of shares in the instant land against Defendant 6 pursuant to the share agreement on April 22, 1991, as seen in the foregoing Section 2, it appears that the common document of this case prepared on April 22, 1991 between the Plaintiff and Defendant 5, etc. was merely prepared to clarify the ratio of shares in accordance with their respective share ratio of shares contributed by both the Plaintiff and Defendant 5, etc., and there is no evidence to prove that there was an agreement between the Plaintiff and Defendant 5, etc. to complete the transfer registration of shares in the instant land. Thus, this part of the Plaintiff’s assertion is without merit.

B) Existence of right of claim for share transfer registration following dissolution of partnership

(1) Next, we examine whether the Plaintiff has the right to claim the transfer registration of shares in the instant land as part of the distribution of residual assets following the dissolution of the instant association against Defendant 6.

(2) The Plaintiff and Defendant 5 et al. agreed to jointly purchase the entire land of this case and dispose of proceeds from resale on the entire account of all the Plaintiff, Defendant 5 et al., and then distribute them. Thus, the relationship between the Plaintiff and Defendant 5 et al. pursuant to the joint investment agreement of this case shall be deemed to constitute a cooperative under the Civil Act established with the objective of obtaining gains from resale of the entire land. However, as alleged by the Plaintiff, the Plaintiff did not claim for the remainder of the portion of the land of this case, excluding the Plaintiff’s right to claim for distribution of the remaining portion of the land of this case, including the Plaintiff’s non-party 1, 5, 94, 14 through 16, 21, and 23, and the purport of the entire arguments as to whether the association of this case was dissolved, and the Plaintiff did not claim for distribution of the remaining portion of the land of this case to the Plaintiff and the Plaintiff’s non-party 2, including the Plaintiff’s right to claim for distribution of the remaining portion of the land of this case.

2) If so, the plaintiff's right to claim the transfer of ownership against the defendant 6, ① share allocation agreement on April 22, 191 or ② the right to claim the transfer of ownership on April 96/1,705 out of the land of this case following the right to claim the distribution of residual property following the dissolution of the association of this case cannot be recognized in entirety. The plaintiff's lawsuit against the defendant 3, 4, 5, and 2 against the defendant 3, 4, 5, and 2 is unlawful due to the deficiency of the preserved claim, which is a requirement for exercising the right to claim the subrogation of

5. Conclusion

Therefore, the plaintiff's claims against the defendant 2, 3, 4, and 5 are all dismissed. The plaintiff's claims against the defendant 1 are accepted within the scope of the above recognition, and the remaining claims are dismissed as without merit. The plaintiff's claims against the defendant 6 is dismissed as it is without merit. Since the part against the defendant 6 in the judgment of the court of first instance is unfair as it is concluded differently, the part against the defendant 6 in the judgment of the court of first instance which was accepted the appeal by the defendant 6 and the part against the defendant 6 in its revocation is dismissed. The plaintiff's appeal is dismissed as it is without merit.

[Attachment]

Judge Han-hee (Presiding Judge)