[1] The legal nature of the division of property agreement premised on the divorce between husband and wife during the marriage

[2] The case holding that the division agreement of property is still a condition for an agreement on the division of property, on the ground that the agreement on the division of property is still made on the ground that the agreement on the division of property is not for the division of property regardless of whether the agreement is married or not, but for the division of property under the premise that the agreement on the division of property is formed, and that the agreement on the division of property is for the first time after the agreement on the division of property, and that the agreement on the division of property is for the first time after the agreement on the division of property, and the agreement on the division of property is still on the condition that the agreement on the division of property is made on the division of property.

[1] The agreement on the division of property refers to a consultation between the parties who already completed a divorce or between the parties who have not yet been divorced as to the division of property, which has been achieved through the cooperation of both parties during the marriage, and in the case where the parties who have not yet divorced agree on the divorce by agreement on the division of the above property under the premise of such agreement, barring any special circumstances, it shall be deemed that conditional declaration of intention is made on the condition that the divorce by agreement between the parties would be achieved by agreement between the parties in the future. Thus, in the case where a divorce by agreement is made after the agreement between the parties in the agreement, the agreement shall take effect only in the case where a divorce by agreement is made after the agreement between the parties in the agreement, and where a marital relationship remains without divorce by agreement or a judicial divorce (including a divorce by agreement or mediation) is made by a lawsuit on the claim of divorce filed by one party, the agreement shall not take

[2] The case holding that the division agreement of property is still a condition for an agreement on the division of property, on the ground that the agreement on the division of property is still made on the ground that the agreement on the division of property is not for the division of property regardless of whether the agreement is married or not, but for the division of property under the premise that the agreement on the division of property is formed, and that the agreement on the division of property is for the first time after the agreement on the division of property, and that the agreement on the division of property is still made on the grounds that the agreement on the division of property is not for the division of property regardless of whether the agreement is married or not.

[1] Articles 105, 147, and 839-2 of the Civil Act / [2] Articles 105, 147, and 839-2 of the Civil Act

[1] Supreme Court Decision 95Da23156 delivered on October 12, 1995 (Gong1995Ha, 3735)

Plaintiff (Attorney Park Jong-sung, Counsel for the plaintiff-appellant)

Defendant (Attorney Yoon-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 98Na38380 delivered on May 18, 1999

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

We examine the grounds of appeal.

1. According to the reasoning of the judgment of the court below, the court below acknowledged that the registration of ownership transfer was made in the name of the plaintiff with respect to each real estate listed in the attached Table (1) attached to the real estate list attached to the judgment below, and that the registration of ownership transfer was made in the name of the defendant as of July 1, 1994 with respect to each real estate listed in the attached Table (2) as of July 1, 1994, and that the plaintiff and the defendant were living together from 1984 and entered into a de facto marital relationship with them on October 6, 1990, while entering into a marriage report on July 1, 1994, while entering into a divorce agreement on July 1, 1994, the court below determined that each real estate owner and the defendant distributed one half shares of all property owned by the plaintiff and the defendant on July 1, 1994 as of the above date, and thereafter, they agreed not to jointly interfere with the other party's private life and violate the agreement.

2. However, the agreement on division of property refers to a consultation between the parties who already completed a divorce or between the parties who have not yet been divorced on the division of the property, which has been achieved through the cooperation of both parties during the marriage, and in the case of consultation on the division of the above property on the premise that the parties who have not yet divorced on the basis of the agreement to divorce at the future, barring any special circumstance, it shall be deemed that a conditional declaration of intention is made on the condition that the divorce would be achieved by agreement between the parties in the future, unless there are special circumstances. Thus, if the parties have agreed upon the agreement after the consultation, the agreement takes effect only in the case where the divorce has been made as agreed by the parties, but the marital relationship remains without divorce by any reason, or a judicial divorce (including a divorce by reconciliation or mediation) has been made by a lawsuit on the divorce filed by one of the parties (see Supreme Court Decision 95Da23156, Oct. 12, 195).

In this case, in light of the facts established by the court below, even if the plaintiff and the defendant agreed to divide the property after the settlement of the property before the divorce, the purport of the agreement is not to divide the property regardless of whether the agreement is married or not, but to avoid prosperitys that may arise due to the husband's failure to perform the agreement on the division of property after the agreement is reached, if the agreement is to divide the property on the premise that the agreement is reached, but if the agreement is to divide the property before the divorce, the agreement on the division of property between the plaintiff and the defendant shall be deemed to be a consultation on the division of property with the liquidation meaning of the property jointly formed during the marriage on the premise of the divorce. Thus, the agreement on the division of property is still subject to

However, according to the records, the plaintiff filed a divorce lawsuit against the defendant with the Seoul Family Court on October 21, 1996 (record 409 pages). In light of these circumstances, there is little possibility that the divorce between the plaintiff and the defendant may be established. Therefore, the court below should have judged whether the suspension condition of the above agreement between the plaintiff and the defendant has been fulfilled after further examination and confirmation as to whether the divorce between the plaintiff and the defendant has been established.

Nevertheless, the lower court did not examine whether a divorce between the Plaintiff and the Defendant has been constituted, but instead accepted part of the Plaintiff’s conjunctive claim seeking registration of transfer of ownership based on the agreement between the Plaintiff and the Defendant on the premise that the agreement between the Plaintiff and the Defendant on division of property took effect, which led to an error of law affecting the conclusion of the judgment by misapprehending the legal doctrine on the division of property between the parties who did not divorce

3. Therefore, without further proceeding to decide on the grounds of appeal, the part against the defendant among the judgment below against the defendant is reversed, and that part of the case is remanded to the court below. It is so decided as per Disposition by the assent

Justices Seo-sung (Presiding Justice)