2015 Gohap1793 Cancellation of ownership transfer registration.

A Stock Company

1. B

2. C

May 26, 2016

August 25, 2016

1. Of the instant lawsuit, the part of the claim against Defendant C is dismissed. 2. The Plaintiff’s claim against Defendant B is dismissed.

3. All costs of lawsuit shall be borne by the Plaintiff.

1. Defendant B shall implement the procedure for registration cancellation of ownership transfer registration completed under No. 49798 of receipt on June 11, 2014 with respect to the Do Government-si D large 429.1 square meters, and E large 514.4 square meters in Do Government-si, Do Government-si, Dong Government-si.

2. Defendant C will implement the procedure for the cancellation of the provisional registration of the right to claim transfer of ownership, which was completed on December 29, 2014 by the Government registry office of the District Court in the District Court with respect to each real estate described in paragraph (1).

1. Presumed factual basis

A. In order to conduct an urban-type residential housing project (hereinafter “instant project”), the Plaintiff purchased E large E 514.4m and D large 429.1m (hereinafter “each of the instant real estates”) from the Government-si in order to complete the registration of ownership transfer in the name of the Plaintiff.

B. On November 22, 2012, the Plaintiff obtained a building permit on each of the instant real property, which newly constructs one unit of multi-family housing (urban-type residential housing) with the fourth underground floor and fifteenth ground level on each of the instant real property (hereinafter “instant building permit”).

C. On May 15, 2015, the Plaintiff agreed to operate the instant business with Defendant B on May 15, 2015 (hereinafter referred to as “instant business partnership agreement”) to attract investment funds and to enter into a partnership with the instant business. The main contents of the instant business partnership agreement are as follows.

○ The Plaintiff, with the authority of the executor and the city construction, newly constructs urban residential housing by using the existing permitted drawings.

Defendant B, for the instant project, invested KRW 1.5 billion for the instant project and repaid its debts, cancelled the burden, such as the registration of establishment of a mortgage on each of the instant real estates.

○ The instant real estate is managed in trust with a trust company, and the project funds are financed by a project financing method from the bank.

In order to facilitate the project of this case, Defendant B shall provide the Plaintiff with subsidies not exceeding KRW 200 million in order. Upon the completion of the project of this case, Defendant B shall preferentially distribute 200% of the total amount of investment (3 billion won) from a trust company in the following order: (a) the Plaintiff shall have the right to share the remainder of the profits, excluding the above priority dividend, out of the profits accrued at the completion of the project of this case.

D. On May 15, 2014, the Plaintiff prepared a sales contract causing 3.5 billion won of the purchase price for each of the instant real estate (hereinafter “instant sales contract”) with Defendant B, and completed the ownership transfer registration (hereinafter “instant ownership transfer registration”) with the Government Registry of the District Court (No. 49798, Jun. 11, 2014) to Defendant B on June 11, 2014.

E. On December 29, 2014, Defendant B completed the provisional registration of the right to claim ownership transfer (hereinafter referred to as “provisional registration of this case”) under the receipt No. 120824 on December 29, 2014, for the reason that each of the instant real estates was pre-saleed on December 29, 2014.

F. On November 4, 2014, November 19, 2014, and November 20, 2014, the Plaintiff notified Defendant B of the termination of the instant partnership agreement.

G. The instant building permit was revoked around December 23, 2014 on the ground that the construction was not commenced by November 1, 2014, the period of commencement of construction work.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 5, 7, Eul evidence Nos. 2, 4, 5, 9 (including paper numbers), the purport of the whole pleadings

2. Determination as to the claim against the defendant B

A. The plaintiff's assertion

The Plaintiff is to receive KRW 1.5 billion of investment and subsidies, and entered into a contract for the partnership business of this case and each real estate of this case with Defendant B, and Defendant B did not appropriately pay the investment and subsidies by the due date in violation of each of the above contracts. Since the Plaintiff rescinded each of the above contracts on the grounds of breach of the above contract, Defendant B is obligated to cancel the registration of transfer of ownership of this case due to restitution according to the cancellation of the contract.

(b) Relevant legal principles;

1) In cases of a partnership agreement, such as a partnership agreement, a request for dissolution of a partnership, withdrawal from a partnership, or expulsion from a partnership, and cannot be imposed on the other party upon the other party to cancel or terminate the partnership agreement as in a general contract. If a specific partner has given notice of termination to the other party to the partnership under the circumstance that the conflict between the parties to the partnership becomes broken due to the decentralization and it is impossible to expect the smooth operation of the partnership’s business even under the name of withdrawal or expulsion from a specific partner, then it may be deemed a request for dissolution of the partnership accompanied by the extinguishment of the partnership (see Supreme Court Decision 2013Da29714, Jun. 11, 2015).

2) In cases where the association is dissolved, unless otherwise agreed by the parties, the remaining assets and the value of the remaining assets to be distributed to the association members are determined as at the time the liquidation procedures are completed, and in principle, the association may not file a claim for distribution of the remaining assets

If the administrative affairs, such as collection of claims or repayment of debts, which have been jointly reverted to the union on June 11, 2015, have not been completed, the collection of claims or repayment of debts should, in principle, be jointly performed by all union members. As such, barring special circumstances where fair distribution of residual assets is possible among union members even if collection, repayment, etc. have not been completed, it shall be deemed that the said debt constitutes a remaining business to be handled by the union, unless liquidation procedures are followed (see Supreme Court Decision 2013Da29714, Dec. 8, 2005; Supreme Court Decision 2004Da30682, Dec. 8, 2005).

1) In full view of Gap evidence Nos. 9, Eul evidence Nos. 2 through 6, Eul evidence No. 12-1, the following facts can be acknowledged.

○ At the time of the preparation of the instant sales contract, a decision to commence auction was issued on each of the instant real estate, and on May 15, 2014, the postponement of auction was accepted and expected to resume on June 15, 2014. The main contents of the instant sales contract are as follows.

'Defendant B paid the down payment of KRW 110 million on May 15, 2014, and the Plaintiff, among down payment and the intermediate payment of KRW 1.5 billion, shall adjust and cancel all the obligations of the Party A and B on the registration certificate accompanied by the buyer on the date of the intermediate payment (except for the 1,001,001,000,000 won, 1,440,000 won, 1,000 won, and the registration of ownership transfer is completed on the date of the intermediate payment. This contract is a contract, including the right to permit the building under the name of the seller, the buyer will proceed with the construction of urban-type residential housing under the plan of the existing land, and the buyer will invalidate this contract if the buyer fails to perform this.”

○ Liability for the secured debt of the right to collateral security established on each of the instant real property, the amount of seizure, provisional seizure, etc. was KRW 3.5 billion in total. The ownership of each of the instant real property was transferred to Defendant B, and the amount was set at KRW 3.5 billion based on the above amount, and the said amount was not actually received.

On December 17, 2014, each of the instant real estate, the establishment registration of a mortgage was completed with the debtor, the maximum debt amount of Defendant B and the maximum debt amount of KRW 3.25 billion, and the mortgagee of the right to collateral security as the Yangju Livestock Cooperative. Defendant B, on December 2014, deleted the burden of the establishment registration of an existing neighboring mortgage, etc., whose debtor is the plaintiff, with the money leased the right to collateral security as a substitute repayment loan, around December 2014.

Defendant B paid KRW 110 million, such as the amount of provisional seizure, to F, etc. of each of the instant real estate by the provisional seizure creditors F, etc., and paid KRW 162 million to the Plaintiff by leasing the sales office and paying rent, etc.

Defendant B demanded the Plaintiff to change the construction work of the instant project from the Plaintiff to another construction company, and to transfer the authorization and permission rights. The Plaintiff refused to comply therewith, and the Plaintiff raised a complaint on the ground that Defendant B did not pay the investment and subsidies set forth therein, and there was a dispute in the process of carrying out the instant project between the Plaintiff and Defendant B.

○ Defendant B received money from the Plaintiff’s representative director G by deceiving the use for the instant project without thought, and filed a fraudulent complaint with the Plaintiff’s representative director G, and the judgment of conviction was rendered on the charge of some of the charges (Korean District Court Decision 2015Da3056),

As to the cancellation of the instant building permit, the Plaintiff and Defendant B caused the cause to each other, and Defendant B demanded the Plaintiff to leave the office on December 31, 2014, and thus, the extinguishment between the Plaintiff and the Defendant B continued.

2) According to the premise facts and the above facts, the Plaintiff and Defendant B entered into the association agreement on the instant project, and the Plaintiff and Defendant B shall be deemed to have invested KRW 1.5 billion in each of the instant real estate, and the Defendant B shall be deemed to have invested KRW 1.5 billion in each of the instant real estate (the subsidy shall not be deemed as KRW 200,000,000,000,000,000,000,000,000,000,000,0000,000,000

Thus, the plaintiff's claim against the defendant B is the purport to cancel the partnership agreement of this case, which is the partnership agreement, and to seek restitution to the original state. Thus, the plaintiff's claim against the defendant B is without merit, since the contract cannot be cancelled or terminated and the other party cannot bear the obligation of restitution to the original state.

3) We examine the Plaintiff’s claim against Defendant B as a claim for the distribution of residual property following the dissolution of the partnership. According to the above facts of recognition, trust relationship was broken due to the conflict between the Plaintiff’s representative director G and the Defendant B, and the smooth operation of the partnership’s business could not be expected. Under this circumstance, the Plaintiff’s notice of termination given to Defendant B, who is a specific partner, is a claim for dissolution of the partnership accompanied by the extinguishment of the partnership.

However, in order to promote the instant project, there is no evidence to acknowledge that there is no special circumstance to acknowledge that the association’s remaining business remains and that it is possible to distribute the remaining assets fairly among the union members, since the work, such as repayment of the debt, which has been reverted to the association between the Plaintiff and Defendant B, is not completed, etc.

Therefore, the plaintiff cannot immediately seek a distribution of the remaining assets against the defendant B without undergoing the liquidation procedure. Therefore, this part of the claim is without merit.

3. Determination on the legitimacy of the part of the claim against Defendant C among the instant lawsuit

The Plaintiff asserts that the provisional registration of this case is null and void by means of false conspiracy, false conspiracy, or anti-social legal act, and sought the cancellation of the provisional registration of this case from Defendant C in subrogation of the Defendant B by claiming the cancellation registration of the ownership transfer registration of this case against Defendant B as the preserved bond.

In the obligee’s subrogation lawsuit, the existence of the obligee’s right to the obligor, which is to be preserved by subrogation, is a requisite for the lawsuit. As seen earlier, the obligee’s right to claim for cancellation of ownership transfer registration against the Defendant B is not recognized. Thus, the obligee subrogation lawsuit against the Defendant C is unlawful due to the absence of the preserved claim.

4. Conclusion

Therefore, the part of the claim against Defendant C among the lawsuit of this case is unlawful and dismissed, and the plaintiff's claim against Defendant B is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge and the fixed number of

Judges Cho Jong-Un

Judges Park Il-young