Time of reversion of establishment of an incorporated foundation and contributed property

The provision of Article 48 (1) of the Civil Code provides that "the property contributed shall become the property of a corporation from the time when a corporation is constituted" shall be interpreted as acquiring the ownership of the property only when the corporation has received the registration of transfer of the property contributed to it in accordance with the Korean legal system that takes the form of a real right change in real rights.

Articles 48, 186, and 187 of the Civil Act

Supreme Court en banc Decision 78Da481, 482 Decided December 21, 1979

Plaintiff

Defendant 1 and 10 others

Intervenor Incorporated Foundation

Seoul District Court Decision 74Gahap77 (Mainate), 74Gahap500 (Intervention)

1. Each appeal filed by the plaintiff and the party intervenor is dismissed.

2. The costs incurred by the plaintiff's appeal shall be borne by the plaintiff and the costs incurred by the plaintiff's appeal shall be borne by the party's intervenor.

Plaintiff; and the original judgment shall be revoked.

Defendant 1, 2, 3, 4, 5, 6, 7, 8, and 9, with respect to the real estate listed in the attached list No. 2, on January 21, 1964, with respect to the Plaintiff’s real estate indicated in the attached list No. 2, Defendant 10, on February 14, 1964, performed the procedure for registration of cancellation of ownership transfer under Article 1872 of the above receipt of the above registration office on January 30, 1964 with respect to the registration of ownership transfer under Article 3050 of the above registration office on the same real estate, and the registration of cancellation of ownership transfer under the attached list No. 1872 on March 1, 1974 on the real estate listed in the attached list No. 1, 2, and 11 (the Defendant 11 executes the procedure for registration of ownership transfer due to termination of trust on March 1, 1974).

All the costs of lawsuit shall be borne by the Defendants in the first and second instances.

The intervention by the parties concerned; the original judgment is revoked.

The Plaintiff and the Defendants confirm that each of the real estate listed in the [Attachment Nos. 211, 5,040, 2, 211, 5,040, and 1/18 of the shares in the above real estate was owned by the Intervenor. With respect to the 1/18 share in the above real estate, the Plaintiff: (a) the procedure for the registration of ownership transfer due to the contribution on April 10, 1956; (b) Defendant 1, 2, 3, 4, 5, 6, 7, 8, 9 of the above real estate; (c) the procedure for the registration of ownership transfer due to the sale of the above real estate between Nonparty 2 and Nonparty 1 (the non-party 1, 1964, 1964, 3, 4, 5, 6, 7, 8, 9, 1964, 10, 14, 1964) was cancelled by the above registration office on February 16, 196, 14, 1964.

The judgment that the costs of lawsuit shall be borne by the plaintiff and the defendant

1. Judgment on the plaintiff's main defense as to the plaintiff's party's intervention

The plaintiff defense that the party's intervention in the lawsuit should be dismissed on the ground that it is unlawful to meet the requirements for participation. However, the party's defense that the party's intervention in the lawsuit is owned by the intervenor in the attached Table 2, which is the object of the lawsuit in this case, is obvious in the record that the plaintiff's assertion that the plaintiff's intervention in the lawsuit is not compatible with the plaintiff's claim against both the plaintiff and the defendant, and thus,

2. Judgment on the plaintiff's main claim

According to Gap evidence Nos. 1-1 through 35, 9-1 through 71, each entry is presumed to be established because it is an official document, and according to non-party 2 (the father of the plaintiff), the ownership transfer registration of the non-party 1 (the decedent of the non-party 1 through 9) was made under the name of the non-party 2 (the plaintiff's father), 2,454, 211, 2040, 1964.1. 21, 107, 1072, 17. 17. 26. 3. 3. 1, 196, each of the above two real estate and the former parcel number of the non-party 1 (the decedent of the non-party 1 through 9) whose ownership was registered under the name of the non-party 1 (the former parcel number of the non-party 26. 14. 26. 1, 1964). 26. 14. 1, 197. 3

Since the Plaintiff’s registration of ownership transfer was made on the 10th anniversary of the above 10th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 106th 14th 16th 16th 16th 16th 16th 16th 16th 16th 16th 16th 16th 16th 16th 16th 16th 16th 16th 26th 26th 26th 1966th 16th 16th 26th 26th 3th 1964 16th 17th 26th 1964 16th 204. 3rd 16th 1964. 2nd 16th 3th 14th 1964.

In light of the above facts, 10, 12, 13, and 14 were collected to secure the registration of ownership transfer for the above 10-party 1, the plaintiff was liable for 3,00,00 won to the deceased 1 as an obligation for business around November 1963, and the registration of ownership transfer for the above 10-party 2 was made on the 10-party 1, 208, 211 as to the above 1-party 3-party 1, 3-party 1, 10-party 1, 10-party 1, 10-party 1, 10-party 1, 10-party 1, 20-party 1, 3-party 1, 196-party 1, 10-party 1, 20-party 1, 3-party 1, 196-party 1, 3-party 1, 1964.

Therefore, the registration of transfer of ownership in the name of the defendants as to real estate was made in the form of sale or repurchase agreement to secure the plaintiff's obligation to the defendant 11. First, as to whether the above registration was null and void in violation of Articles 607 and 608 of the Civil Code, according to the facts recognized above, the principal amount of the money borrowed from defendant 11 is 7,030,000 won + 5.230,000 won + 522,481 won [1,80x (91/365)] + (2) (5,230,00x (1/365), and (2) it cannot be acknowledged that the above appraisal was made in excess of the market price at the time of the above appraisal of real estate at the time of the above 200,000 won (151/365) and there is no other evidence that the appraisal of real estate was made in excess of the above amount at the time of the above appraisal of real estate at the time of 10, 2010,205, more than the above appraisal of real estate at the above.

Following the argument that the plaintiff's repayment of debt against the non-party 1 should be cancelled. According to the testimony and pleading of the non-party 11 of the court below, it can be acknowledged that the plaintiff's payment of debt against the non-party 1 by adding up 1,80,000 won to 1,20,000 won borrowed from the defendant 11 and then, the plaintiff's payment of debt against the defendant 1 cannot be acknowledged as having been made for the above 7,00,000 won to the non-party 1. According to the above witness's testimony, the plaintiff's payment of debt against the defendant 10,000 won and the above 10,000 won cannot be acknowledged as having been made for the above 10,000 won to the non-party 1. The plaintiff's payment of debt against the non-party 1 for the above 10,030,000 won as well as the above 110,000 won of the above real estate's loan.

Therefore, the argument that the Plaintiff fully repaid the obligation to Defendant 11 is eventually unacceptable.

Therefore, we cannot accept the plaintiff's assertion that each of the above registrations concerning each of the above real estate in the name of the defendants should be cancelled because it has become invalid.

The plaintiff is a selective claim and the above registration made by the plaintiff against the defendant 11 is merely a way to secure a debt, and thus, the above registration was fully completed. Thus, the plaintiff's above registration was requested to terminate the above trust contract and to implement the procedure for ownership transfer registration based on the termination of the trust contract against the defendant 11. Thus, there is no evidence to prove that the above registration of ownership transfer based on the above real estate made by the defendant 11 was based on the cause of invalidity in violation of Articles 607 and 608 of the Civil Code. Further, as shown above, there is no evidence to prove that the above registration was made based on the cause of invalidation in violation of Articles 607 and 608 of the Civil Code. Thus, the plaintiff's above claim against the defendant 11 cannot be accepted because there is no reason to further determine.

3. Judgment on the claim of the party intervenor

The party intervenor was originally owned by the deceased non-party 2 at 211 (former Parcel Number before subdivision) in Gwanak-gu, Seoul Special Metropolitan City. Around April 10, 1956, Dong 1 contributed to the intervenor's fundamental property to be established at the future. The intervenor's offender as the basic property at the time of May 9, 1960 and completed the establishment registration on May 20 of the same year. Thus, the above land was owned by the intervenor at the same time as the corporation's establishment registration. However, the plaintiff confirmed that the plaintiff 2 did not complete the registration of transfer of the above land, and confirmed that the registration of transfer was made in the name of non-party 1, defendant 10, 11, and the above land was divided by the non-party 2, the non-party 2's heir and the non-party 1, the non-party 2's list of co-party 1 and the defendant 2, the non-party 1, the non-party 2's heir and the non-party 2.

However, Article 48 (1) of the Civil Code provides that "the property shall become the property of a juristic person from the time when the juristic person is formed" means that if the property contributed is a real estate, the juristic person shall have the right to claim the registration of transfer of the property contributed at the time the juristic person is formed, and under our legal system taking the form of the change in the real right to real estate, the juristic person shall be interpreted to acquire the ownership of the property only when the juristic person has received the registration of transfer of the property contributed after its establishment. It is obvious by the party's assertion that the party's intervenor has not yet received the registration of transfer of the above land. Thus, the intervenor's claim based on the premise that the intervenor acquired the ownership of the above land at the time of its establishment registration shall return to without any reason

4. Conclusion

Therefore, all of the plaintiff's claim and the party intervenor's claim shall be dismissed. Since the original judgment is just in accordance with the conclusion with the party members, and all of the appeals filed by the plaintiff and the party intervenor are unfair, each of them shall be dismissed. It is so decided as per Disposition by the application of Articles 95, 94, and 89 of the Civil Procedure Act to the burden of the appeal cost.

Judges Lee Byung-chul (Presiding Judge)