Plaintiff 1 and three others (Law Firm Barun, Attorneys Choi Young-ro, Counsel for the plaintiff-appellant)

Defendant 1 et al., the taking over of the lawsuit of the deceased Nonparty

Intervenor Co., Ltd. (Attorney Kang Byung-soo et al., Counsel for the intervenor-appellant)

March 15, 2006

Seoul Central District Court Decision 2003Gahap70855 Delivered on July 15, 2004

1. Revocation of a judgment of the first instance;

2. The Defendants shall implement the procedure to change the name of the owner on the construction permit stated in the annexed Form to a company of Gyeongnam-si (242-10, 111- 008262), which is located in the name of the building owner in the annexed Form, into a company of Gyeongnam-si.

3. The costs of the lawsuit shall be borne by the defendants' assistant intervenor in total, and the costs of the participation in the lawsuit shall be borne by the defendants' assistant intervenor, and the remainder by the defendants.

The same shall apply to the order.

1. Basic facts

The following facts do not conflict between the parties, or may be acknowledged by comprehensively taking into account the following facts: Gap evidence 1-1, 2-1, 2-1 (the same shall apply to the evidence 2-1), 2 (the same shall apply to the evidence 3-1, 2, 4, 5-1, 6-1, 2, 7-9, 11-1, 2, 15-1, 23, 25-1, 25-2, 4, 26, 27, 4-1, 4-1 of the evidence 4-2, and the testimony of non-party 2 as a witness of the first instance trial.

A. At first, Gyeongdong-gu Seoul Metropolitan Government (hereinafter “Gyeongdong-dong”) owned 794.3 square meters in total, including 943-4, 943-7, and the network Nonparty 1 owned 943-6 square meters in Taiwan-dong 943-6 land, and a new investment financing company (hereinafter “new investment financing company”) owned 943, 943-1, 943-1, 943-2, 943-3, 943-5, and 943-5, respectively.

B. Around 194, Gyeongnam Company agreed to conduct a joint construction project (hereinafter “instant project”) with the content that Gyeongnam Company will undertake to undertake construction work on its ground by providing each party with the above-to-land-owned land (hereinafter “instant project”).

C. After that, on August 16, 1994, the deceased non-party 1 agreed to participate in the instant project by providing the land owned by the deceased non-party 1, and also the land owned by the deceased non-party 1, and agreed to newly construct the office building on the ground level of 6 stories above 943 square meters above 900 square meters above 7 square meters (2,975 square meters) and above 900 square meters below the ground, which are owned by the Gyeongnam-dong and the deceased non-party 1 and the third party of the new knish paper (hereinafter referred to as the “instant building”). The main contents are as follows.

① The value of land owned by Gyeongnam Enterprise shall be assessed as KRW 6.684 billion, the value of land owned by the deceased non-party 1 shall be KRW 3.29 billion, the value of land owned by the new non-party 1 shall be KRW 3.497 billion, the value of land owned by the new non-party 1 shall be assessed as KRW 3.497 billion, and the expenses incurred in the joint project shall be apportioned according to the investment ratio of the draft basic plan (27.3% of the remaining enterprises, the network non-party 10%, and 62.7% of the new balance) to the amount of construction cost at the time of the input (17.589 billion, the remaining expenses, excluding the value of the site, shall be apportioned in cash as at the time of the input (17.5 billion, the remaining expenses shall be KRW 1.562 billion, the deceased non-party 1.52 billion, the 21.

(2) Construction works shall be conducted by Gyeongnam company, and construction costs shall be determined after completion of authorization and permission, based on the precision check of Gyeongnam company in accordance with design documents, by mutual consultation between Gyeongnam company and the deceased non-party 1.

(3) After completion, 10% of the total floor area of the building shall be owned by the deceased Nonparty 1, and the ground area shall be allocated from the upper floor to the deceased Nonparty 1, but the underground first floor and the parking lot shall be allocated within the limit of 10% of the total floor area.

(4) On the completion of a building permit, any remaining company and any deceased non-party 1 shall immediately conclude this contract after determining matters necessary for the construction contract, such as the period of construction, the contract amount, etc.

(5) Other matters shall be in accordance with a letter of agreement on new types of money with South-North enterprises.

D. Around May 14, 1996, when the project of this case was in progress pursuant to the above agreement, Gyeongnam Company, one of the joint business operators of this case and the contractor of the new construction of the building of this case, decided to waive the contractor's status and carry out the project only in the status of joint business operators as well as the new paper money and the deceased non-party 1. Accordingly, the joint business operators of this case agreed again on the project of this case, and the main contents thereof are as follows.

1. At the same time as this Agreement, all agreements entered into between Gyeongnam and Gyeongnam are terminated (Paragraph 1), and the agreement between Gyeongnam and the deceased non-party 1 on August 16, 1994 shall be in full charge of all the powers and responsibilities by succeeding to Gyeongnam and by succeeding to Gyeongnam, and after this agreement, the deceased non-party 1 shall not raise an objection against Gyeongnam in any case (Paragraph 2).

(2) Civil engineering works conducted in the course of performing Gyeongnam Enterprises by means of a contract for new types of money with Gyeongnam Enterprises shall be cut off on May 14, 1996, and the portion equivalent to the shares of new types of money out of the cost of new construction works for Gyeongnam Enterprises until other forms of money shall be paid in cash to Gyeongnam Enterprises (paragraph (3)).

(3) A new paper shall be selected for a construction project to carry out the remaining civil works and construction works, and the contract amount shall be determined, and a new paper and the above construction project shall be entered into after consultation with the Gannam enterprise by preparing a written contract agreement: Provided, That the Gannam enterprise shall participate in the project in shares in the site and shall be delegated to the new paper gold (paragraph (5)).

4. The new balance shall be paid in cash to the remaining enterprises in the form of a parcelling-out contract with the Gyeonggi-do Enterprise at the same time as this agreement is entered into, and simultaneously with, a written agreement is entered into with the Gyeonggi-do Enterprise for sale: Provided, That when the new balance is transferred to a third party, the Gyeong-nam Enterprise shall actively cooperate therewith (paragraph 6).

E. On May 15, 1996, with respect to the agreement on this D. D., the following additional agreements were made between Gyeongnam Company and Gyeongnam Company:

1. In relation to paragraph (5) of the agreement above, the construction cost (including cost for out-of-the-counter) for the shares of the Gyeongnam Company shall be adjusted to the proceeds of sale in lots and the balance that are paid to the Gyeongnam Company. At the request of the Gyeongnam Company, the unpaid cost for out-of-the-paid shares of the Gyeongnam Company may be directly paid to the Gyeongnam Company.

② With regard to Paragraph (6) of the above Paragraph (d) agreement, if the sale of shares in a company of Gyeongnam is liable for new balance, and if the sale of shares in a company of Gyeongnam is not completed by December 31, 1996, the sale deposit shall be replaced by the sale contract, and the ownership of the company of Gyeongnam shall be acquired with the down payment and intermediate payment, and any balance paid by the company designated by Gyeongnam in a new balance. Of the acquisition tax and the portion of the acquisition tax of the company of Gyeongnam, the new balance shall be paid at the request of Gyeongnam at the time of notification. The acquisition tax and the registration tax of the building of Gyeongnam company after completion, and other expenses, shall be borne by the new balance at the request

(3) Any value-added tax that occurs at the time of sales contract with an enterprise designated by a new or new kind of gold shall be borne in cash by an enterprise designated by a new or new kind of gold.

F. On July 25, 1996, the joint business proprietor of the instant case entered into a contract for construction works of the instant building by specifying the contract amount according to the specific shares of the joint business proprietor of the instant building with respect to the new construction works of the instant building. From the head of Gangnam-gu Seoul Metropolitan Government, the joint business proprietor of the instant building entered into a contract for construction works of the instant building by specifying the contract amount according to the specific shares of the joint business proprietor of the instant building. The joint business proprietor was granted a construction permit (permission number 93-2-02

G. On October 1, 1996, joint business operators of the instant case agreed again for the specific project promotion of the instant joint business with the following contents.

(1) The value of land owned by Gyeongnam Enterprise shall be KRW 6.7 billion, the value of land owned by 3.329 billion, the value of land owned by 3.3 billion won, the value of land owned by 34.497 billion, and the value of land owned by 3.4 billion won.

② The cost required for a joint project shall be apportioned according to the investment ratio (22.287% in South and North Korea, 18.476% in the network, and 69.237% in the new form) set forth in the draft basic plan. The remainder, except the value, shall be apportioned according to the ratio of the construction cost at the time of entry (27.127% in South and North Korea, 19.145% in the network, and 63.728% in the new form).

(3) The size of a building shall be distributed to South companies: 3,485; 1,325.48; 1,325.48; 9,024.52; 2 from the first floor to the upper floor; 18, 19, and 2 from the network Nonparty 1; 2 from the 18, 19, and 20 to the company south. The remaining middle floor shall be allocated to the company south.

(4) The area of a building site shall be distributed in the same proportion as the area of a building, and shares shall be registered in combination after conclusion of a construction contract.

H. However, around January 1, 1998, the construction work was suspended at least 34% of the construction work because a new balance was not raised due to a serious economic depression and an IMF crisis, etc. The construction work was announced to the new balance that the deceased non-party 1 caused the discontinuance of construction work on two occasions on May 6, 1998 and September 22, 1998, that "the construction work is resumed as soon as possible because there was an agreement between the parties concerned," but there was no particular progress.

I. After the public auction was conducted on October 9, 1998 with respect to the newly constructed building of this case, the Seoul District Court declared bankrupt, and thereafter, the trustee in bankruptcy with respect to the remaining seven lots 2,602 square meters of the seven lots of land excluding the deceased non-party 1’s land substitute-dong 943-6, among the eight lots of land for the instant project, and the total share of 41,353.97 square meters of the permitted area of the instant building and the new type of 45,736.93 square meters of the building of this case. However, the new construction of the instant building did not resume until November 201.

(j) On November 19, 2001, the deceased non-party 1 notified the trustee in bankruptcy of the new kind of money (the remaining company shall participate in the project of this case as a co-owner with share in the site through the agreement of May 14, 1996, and shall delegate his authority and responsibility to the new kind of money, and the new kind of money has been managed together with the shares in the new kind of money and the shares in the Gannam company. After the new kind of money was declared bankrupt on October 9, 1998, the trustee in bankruptcy of the new kind of money and the shares in the Gannam company continued to manage the shares in the new kind of money and the shares of the Gannam company). On the same day, the Defendants’ supplementary intervenor (hereinafter referred to as the “participating”) transferred all of the land owned by the deceased non-party 1 in the site of the project of this case and the shares in the building of this case, together with the shares in the deceased non-party 1 of this case and the new contractual relationship related to the claim for damages.

(k) On June 3, 2002, the Korea Deposit Insurance Corporation (hereinafter “Korea Deposit Insurance Corporation”) sold to the Plaintiffs the remaining seven parcels of land excluding the deceased non-party 1’s land 943-6 out of eight parcels of land for the instant project and the total amount of shares in the new kind of land 41,353.97 square meters in sales price of 48,028,342,500 square meters among the eight parcels of land for the instant project and the 45,736.93 square meters of land for the instant building permitted to use the instant building. The special agreement reveals that the Plaintiff had a third-party owner who owns shares different from the fact that the shares of the company are included in the real estate subject to the sale and purchase, and therefore, the Plaintiff could not raise any objection, but can not be deemed as a cause of cancellation of the contract.

T. Meanwhile, the Gyeongnam-si and the Korea Deposit Insurance Corporation agreed with Samsung Heavy Industries as KRW 19,324,798,90 on the construction cost of the instant building. On March 7, 2002, the deceased non-party 1 paid construction cost of KRW 269,795,460, which is equivalent to the net non-party 1’s share of construction cost, and completed the settlement of construction cost of KRW 269,79,795,460, which is the unpaid construction cost of KRW 17,557,546,860, which is the share of construction cost of the instant building. The Gyeongnam-si and the Korea Deposit Insurance Corporation completed the settlement of construction cost of KRW 17,57,546,860 on December 31, 202, which was paid more than the construction cost of KRW 515,701,860 on the construction cost of the instant building from Samsung Heavy Industries, and completed the design cost of the instant building and the construction cost.

(m) Meanwhile, the deceased non-party 1 died on September 2, 2005, and Defendant 1 and Defendant 2 and 3, who are his wife, were co-inheritors.

n. The plaintiffs, as of October 17, 2005, lost their membership as a result of the bankruptcy on October 9, 1998 among joint business operators of this case, and the non-party 1 also lost their membership as a result of the death on September 2, 2005. Accordingly, it was confirmed that the building of this case was the sole ownership of the remaining Gyeongnam company, a member of the remaining Gyeongnam company, and then agreed with the plaintiffs and the trustee in bankruptcy on June 3, 2002 on the sales contract (the part in paragraph (k) of this case) with the new Gyeongnam company. The main contents are as follows.

① The terms and conditions of the existing sales contract that may take effect without relation to the consent of Nonparty 1 are recognized as they are, and agree to ratification of the terms and conditions of the existing sales contract as they were, which could not take effect without the consent of Nonparty 1.

② Of the instant building, the part excluded from the existing sales contract (former, Nonparty 1’s share) is to be purchased from the Gyeongnam enterprise, but the price is to be paid by the Plaintiffs to Nonparty 1 (or interested parties) as a share refund for the instant building’s share, and the Plaintiffs are to settle the sales price by paying share refund to Nonparty 1 (or interested parties).

③ The Gyeongnam-si will change the name of the owner of the building of this case to the plaintiffs.

2. Determination on the legitimacy of the application for intervention

The Plaintiffs asserted that, since the Intervenor does not have any legal interest with respect to the change in the name of the owner of the instant building, the request for intervention is unlawful.

However, as seen above, as long as the intervenor purchased the shares of the deceased and the land owned by the deceased from the deceased non-party 1, the intervenor's legal status is based on logical dependence on the outcome of the lawsuit in this case where the person to whom the business property belongs, so the plaintiffs' objection is groundless.

3. Determination on this safety defense

(a) the existence of preserved rights;

(1) In order to preserve the right to claim the change of the name of the owner in respect of the building in this case, the plaintiffs asserted that the procedure for the change of the name of the owner in respect of the building in this case is unlawful since the plaintiffs did not have the right to claim the change of the name of the owner in respect of the building in this case.

(2) In a case where the partnership is dissolved, the partnership's property continues to be jointly owned by its partners and until its liquidation is completed (see Supreme Court Decision 92Da28075 delivered on October 9, 192, etc.). If one of the partnership members dies, the partnership's membership naturally withdraws from its partnership relationship pursuant to Article 717 of the Civil Act, and if the partnership did not agree to succeed to the status of the partnership member who died under the partnership agreement, the status of the deceased partner shall not be succeeded (see Supreme Court Decision 86Da2951 delivered on June 23, 1987, Supreme Court Decision 86Da2951 delivered on June 29, 199, etc.). In the partnership relation with two persons, the partnership relation shall not be terminated without dissolution, and the partnership's property belonging to the partnership's joint ownership shall belong to the partnership's independent ownership, and it shall be merely a calculation due to the withdrawal and withdrawal from the partnership (see Supreme Court Decision 98Da5384, Apr. 198, 19998).

In this case, according to the facts of recognition as above, joint business operators of this case agreed to carry out a joint business which constructs and distributes the building of this case through several agreements from around 1994 to October 1, 1996, and such agreement constitutes a kind of association agreement. due to bankruptcy on October 9, 1998, a new agreement naturally withdraws from a partnership pursuant to Article 717 of the Civil Act and became its members. On the other hand, the new construction of the building of this case, which is the most important part of the above association agreement, was suspended from about 34% of the fair rate of 1994, and it is impossible to achieve the objectives of the association, and the deceased non-party 1, the deceased non-party 1, who was delegated to the South Korean company on November 19, 201, requested for the termination of the agreement between the association and the non-party 10 association's new property remaining after the termination of the agreement between the association and the non-party 10 association's new property repayment agreement.

However, on June 3, 2002, the plaintiffs entered into a sales contract with the trustee in bankruptcy of the new Sejong District to purchase seven lots except the land owned by the deceased non-party 1 among the eight lots of land for the instant business, and with the new gold and Gyeongnam company's shares in the area permitted for the instant building. However, the above sales contract is an act of disposal of the partnership's property, and it is illegal without the consent of the deceased non-party 1, who is the remainder of the union members at the time of the above sales contract. However, the plaintiffs confirmed the above sales contract as invalid after the death of the deceased non-party 1, while the deceased non-party 1, who became the sole owner of the instant building, additionally purchased the shares of the deceased non-party 1, and the plaintiff agreed to move to the name of the owner of the building for the whole building of this case to the owner of the building of the whole building of this case, and eventually, the plaintiff was entitled to the right of change of

B. Necessity of conservation

The intervenor asserts that the plaintiffs' lawsuit of this case is unlawful, since Gyeongnam company already exercises the same rights as the plaintiffs with respect to the building of this case against the defendants.

In full view of the overall purport of the arguments in evidence Nos. 28-1, 2, 3, and 1 of evidence Nos. 28-1, Gyeongnam company filed a lawsuit against the deceased non-party 1 and the deceased non-party 1 and the deceased non-party 1 in bankruptcy in bankruptcy in Seoul Central District Court No. 2004Gahap69098 on Aug. 26, 2004 against the deceased non-party 1 and the deceased non-party 1 in bankruptcy in bankruptcy, and divided the building in this case into ownership of Gyeongnam and the deceased non-party 1, and the deceased non-party 1 and the Korea Deposit Insurance Corporation sought to implement the procedure for change of the owner's name stated in the building permit as stated in the attached Form. However, on Aug. 12, 2005, Gyeongnam company did not exercise the right to claim change of the above owner's name among the claims for change of the owner's name against the deceased non-party 1 and Korea Deposit Insurance Corporation.

4. Judgment on the merits

A. Determination on the cause of the claim

As seen earlier, among joint business operators of this case, the deceased on September 2, 2005 and the deceased non-party 1 naturally withdraws from the partnership, and only the Gyeongnam company left the partnership, and the partnership property including the building of this case was reverted to the sole ownership of Gyeongnam company, which is the remainder of the association members. Unless there are special circumstances, the defendants are obliged to implement the procedure for changing the name of the owner of the building of this case to the Gyeongnam company upon the plaintiffs' claim that exercise the right to claim the exclusion of interference based on the ownership of the building of this case in subrogation of Gyeongnam company.

B. Judgment on the Intervenor’s assertion

(1) Summary of the assertion

The intervenor asserts that, through the agreement of May 14, 1996 and the agreement of May 15, 1996 as to all rights and responsibilities relating to the building of this case, such as the construction right, were transferred to a new balance, and the proceeds from sale of shares were received and actually withdrawn from the position of union members. However, in order to reduce all kinds of charges, such as taxes, it maintained the status of union members and the name of joint owners only on the pretext of the name to maintain the status of union members and the status of union members after withdrawing from the business of this case on May 14, 1996 under the agreement of all union members, and thereafter, the new balance was automatically withdrawn from the business of this case on October 9, 1998 and eventually became the only member of the deceased non-party 1. Accordingly, the claim of this case is unjust, under the premise that it is in the status of union members.

(2) Determination

(가) 먼저, 경남기업이 조합원 전원의 합의하에 1996. 5. 14.경 이 사건 사업에서 탈퇴하여 조합원의 지위를 상실하였다는 주장에 관하여 살피건대, ① 이 사건 공동사업자는 1996. 5. 14. 이 사건 사업에 관하여 ‘본 합의와 동시에 경남기업과 신한종금이 기 체결한 모든 합의는 해지하고, 경남기업과 망 소외 1의 1994. 8. 16.자 합의는 신한종금이 경남기업을 승계하여 모든 권한과 책임을 수행하기로 하며, 본 합의 이후 망 소외 1은 경남기업에게 어떠한 경우라도 이의 제기를 하지 않는다. 신한종금은 본 합의와 동시에 경남기업과 분양대행계약을 체결하고 분양보증금으로 경남기업에게 93억 2,100만 원을 합의서 체결과 동시에 현금으로 지급한다’고 합의한 사실, ② 경남기업과 신한종금은 1996. 5. 14.자 합의와 관련하여 1996. 5. 15. 추가로 ‘경남기업의 지분에 대한 공사비(외주비 포함)는 신한종금이 경남기업에게 지급할 분양중도금 및 잔금으로 정리한다. 경남기업의 지분에 대한 분양은 신한종금이 책임을 지며, 1996. 12. 31.까지 분양을 완료하지 못할 경우 분양보증금은 분양계약금으로 대체하고, 신한종금 또는 신한종금이 지정하는 업체가 경남기업에게 지급한 계약금 및 중도금, 잔금으로 경남기업의 지분을 인수한다’고 합의하면서, 이때 경남기업이 부담할 세금에 관하여 ‘경남기업의 취득세중과분은 고지시점에서 경남기업의 청구에 의하여 신한종금이 지급한다. 준공 후 경남기업의 건물 취득세 및 등록세, 기타 비용은 경남기업의 청구에 의하여 신한종금이 부담한다. 신한종금 또는 신한종금이 지정하는 업체와 분양계약시 경남기업에게 발생되는 부가가치세는 신한종금 또는 신한종금이 지정하는 업체가 현금으로 부담한다'고 합의한 사실, ③ 파산자 신한종금의 파산관재인은 이 사건 사업의 부지 8필지 중 경남기업과 신한종금 소유의 7필지와 이 사건 건물 허가면적 45,736.93㎡ 중 경남기업과 신한종금의 지분 41,163.23㎡에 대하여 공매를 실시하였다가 유찰되자, 신한종금의 파산관재인 예금보험공사가 수의계약으로 2002. 6. 3. 원고들에게 이 사건 사업의 부지 8필지 중 경남기업과 신한종금 소유의 7필지 도합 2,602㎡와 이 사건 건물 허가면적 45,736.93㎡ 중 경남기업과 신한종금의 지분 41,353.97㎡를 일괄하여 매도한 사실은 앞서 인정사실에서 본 바와 같으나, 한편, 앞에 든 증거에 변론 전체의 취지를 종합하면, ④ 경남기업은 당초에는 이 사건 공동사업자 중 1인이자 이 사건 건물 신축공사의 시공자 지위를 겸하고 있었으나, 그 후 시공자의 지위를 포기하고 신한종금 및 망 소외 1과 마찬가지로 공동사업자의 지위에서 사업을 진행하기로 하여, 위 1996. 5. 14.자 합의 당시에도 ’경남기업은 대지지분에 의한 공동발주자로서 이 사건 사업에 참여하되 그 권한과 책임은 신한종금에게 위임한다‘고 명시적으로 규정하고, 신한종금에게 경남기업의 지분의 관리를 위임하였던 사실, ⑤ 경남기업의 지분에 따라 부담해야 할 공사비를 신한종금이 경남기업에게 지급할 분양중도금 및 잔금으로 정리하기로 신한종금과 약정하였을 뿐, 이로써 경남기업이 조합에서 탈퇴한 것은 아니며, 경남기업은 여전히 자신 소유의 토지를 이 사건 사업의 부지로 제공함으로써 출자의무를 이행하고 있었던 사실, ⑥ 경남기업은 1996. 5. 14.자 합의 이후 1996. 7. 25. 이 사건 공동사업자와 삼성중공업 사이에 공사도급계약을 체결하고 이 사건 공동사업자 사이에 1996. 10. 1.자 합의를 할 당시에도 이 사건 공동사업자 중의 1인으로 참여하고 있었던 사실, ⑦ 삼성중공업과의 공사대금정산은 신한종금의 파산관재인이 경남기업의 위임을 받아 처리하였고, 신한종금의 파산관재인이 공매절차를 거쳐 2002. 6. 3. 원고들에게 경남기업과 신한종금의 지분에 관한 매매계약을 체결함에 있어서도 모두 경남기업의 위임을 받아 처리하였을 뿐만 아니라 경남기업의 지분이 포함되어 있는 것임을 명시하였던 사실을 인정할 수 있는바, 이러한 사실관계에 비추어 보면, 위 ①, ②, ③과 같은 사실만으로는 경남기업이 1996. 5. 14.경 이 사건 사업에서 탈퇴하여 조합원의 지위를 상실한 것이라고 인정하기 어렵고, 달리 이를 인정할 증거가 없으므로, 위 부분 주장은 이유 없다.

5. Conclusion

Therefore, in order to preserve the right to claim the change of name in the construction permit stated in the separate sheet, the plaintiffs' claim of this case against the defendants for the implementation of the procedure for the change of name in the name of the owner to be the company of Gyeongnam is justified. Since the judgment of the court of first instance is unfair with different conclusions, it is accepted by the plaintiffs' appeal, and it is so decided as per Disposition by ordering the defendants to implement the procedure for the change of name in the name of the owner to be the company of Gyeongnam.

【Omission of Indication of Building Permission】

Judges in the appellate trial (Presiding Judge) Kim Jong-soo