[Judgment of the court below]

Defendant 1

Defendant 2

Defendant 3 (Law Firm Korea, Attorneys Kim Jin-hwan, Counsel for defendant-appellant)

April 13, 2017

Suwon District Court Decision 2014Na227897 Decided March 11, 2016

1. The plaintiff's appeal, selective claims added in the trial and the defendants' appeals are all dismissed.

2. Of the costs of lawsuit after the appeal, the part arising between the Plaintiff, Defendant 1, and Defendant 3 shall be borne by Defendant 1 and Defendant 3. Of the part arising between the Plaintiff and Defendant 2, 3/5 shall be borne by the Plaintiff, and the remainder by Defendant 2, respectively.

1. Purport of claim

A. As to the portion of 1/4 of the real estate listed in the attached list No. 1, Defendant 1 performed the procedure for the registration of cancellation of ownership transfer registration completed on December 31, 2009 by Sungwon District Court, Sung-nam Branch Office, Sung-nam Branch Office, 74780 among the real estate ○○○○○○○○○○○○○○○ in the attached list, and Defendant 3 expressed his/her consent to the Plaintiff on the registration of cancellation. Of the first instance joint Defendant 1’s ○○○○○○○○○○○○○○○○○○○○, Defendant 1 implemented the procedure for registration of ownership transfer caused by sale on June 30, 200

B. Of the real estate listed in the attached list No. 2, Defendant 2 implements the procedure for registration of cancellation of ownership transfer registration that was concluded on December 31, 2009 by the receipt No. 74781 of the Suwon District Court, Sung-nam Branch Office, Sungwon-nam Branch Office, Sungwon District Court among the real estate listed in the attached list No. 1/4, and the procedure for registration of ownership transfer registration that was made on June 30, 2009 to the Plaintiff among the real estate No. 1 and co-defendant ○○○○○○○○○○○○○○○○○ was implemented.

C. As to each of the real estate listed in the separate sheet Nos. 3 and 4, Defendant 2 shall implement the procedure for ownership transfer registration for the reason of termination of the agreement on September 10, 2008 or the instant statement of grounds for appeal on September 10, 2008 (the Plaintiff sought implementation of the procedure for ownership transfer registration for the reason of agreement on September 10, 2008 in the first instance court, and the first instance court selected the claim for implementation of the procedure for ownership transfer registration for the reason of termination of the agreement on September 10, 2008 on the date of delivery of the copy of the instant grounds for appeal).

2. Purport of appeal

A. The plaintiff

Of the judgment of the first instance court, the part against Defendant 2, which is the part of the Plaintiff’s order to additionally implement the following additional obligation, shall be revoked. Defendant 2 shall implement the procedure for ownership transfer registration on September 10, 2008 with respect to each one-fourth share of each of the real estate listed in the attached Tables 3 and 4 to the Plaintiff.

B. The Defendants

The part against Defendant 1 and Defendant 3 in the judgment of the first instance is revoked, and all claims against the Plaintiff against Defendant 1 and Defendant 3 are dismissed. The part against Defendant 2 in the judgment of the first instance shall be revoked, and the claim against Defendant 2 in the judgment of the first instance shall be dismissed.

1. Basic facts

The following facts are not disputed between the parties, or each entry in Gap evidence 1, No. 4-1, No. 2, and No. 11, and No. 18-1 and No. 2, respectively, may be acknowledged by considering the whole purport of the pleadings.

A. As to each real estate listed in separate sheet Nos. 1 and 2

1) On June 30, 2009, the first instance trial co-defendant 1’s co-defendant 1’s co-defendant 1’s ○○○○○○○○○○○○○○○○○○ (hereinafter “the instant clan”) drafted a sales contract (a certificate No. 1; hereinafter “the instant sales contract”) with Defendant 1, etc., with respect to the land that was entered into on the pre-division 1,137 square meters (hereinafter “the land before the instant subdivision”) prior to the instant subdivision, which owned the instant clan, with regard to the seller as to the instant clan 1,137 square meters (hereinafter “the land before the instant subdivision”). (hereinafter “the sales contract”).

2) On December 30, 2009, the land before the instant partition was divided into each real estate listed in the separate sheet Nos. 1 and 2 (hereinafter referred to as “instant real estate”) listed in the separate sheet Nos. 1 and 2 (hereinafter referred to as “the instant real estate”), and on December 31, 2009, Defendant 1 completed the registration of transfer on December 31, 2009 with respect to the instant real estate No. 74780, the receipt of the Suwon District Court Sungnam Branch Branch Branch Branch Branch of Gwangju Branch of Seoul Branch of Seoul Branch, and on December 29, 2009, Defendant 2 completed the registration of transfer on December 31, 2009 as to the instant real estate with the above Gwangju Branch Branch Office No. 74781, Dec. 29, 2009; Defendant 3 completed the registration of transfer of ownership on December 3, 2010 as the registration of creation of mortgage (hereinafter referred to as “the maximum debt amount”).

B. As to each real estate listed in separate sheet 3 and 4

1) On September 10, 2008, Defendant 2 prepared a sales contract (a certificate No. 11; hereinafter “instant sales contract”) with Nonparty 2, the buyer of Nonparty 2, and the buyer of Nonparty 2, and the sales contract (a certificate No. 11; hereinafter “instant sales contract”) with the selling price of KRW 1,250,000 with respect to the forest ( Address 1 omitted) owned by Nonparty 2 in Gwangju-si (hereinafter “the forest prior to the instant division”). (hereinafter “the sales contract”) with respect to the forest prior to the instant division, the “the sales contract to be concluded for the forest prior to the instant division” was drafted under the instant sales contract.

2) Under the sequences Nos. 3 and 4 of the forest land before the instant partition or each real estate listed in the separate sheet (hereinafter “instant real estate”) was changed in the relationship of rights as follows with respect to the instant real estate (hereinafter “instant real estate”)

o On December 16, 2008: The debtor, the mortgagee of the right to collateral security, the Gwangju District Livestock Cooperative, the plaintiff, the mortgagee of the right to collateral security, the Livestock Cooperative,

Maximum debt amount of KRW 390,000,000 (Termination on December 2, 2010)

o. For a registration of transfer of ownership on June 29, 2009: The owner of the land and June 25, 2009

o On September 14, 2009, the registration conversion (an increase of the area of 7,152 square meters to 7,277 square meters) and the instant case.

o On December 2, 2010: Non-party 3, who is the husband of each plaintiff, the non-party 3, the bank of Korea, the maximum debt amount of 360,000,000 won (the first order), the 180,000,000 won (the second order) who is the husband of each plaintiff.

2. Determination as to the claim regarding (1) and (2) of this case

A. Summary of the parties' assertion

1) Plaintiff

The plaintiff, the defendant 1, the defendant 2, and the non-party 1 (the non-party) jointly purchased the land before the division from the clan of this case on June 30, 2009, and entered into a title trust agreement around that time, and completed the registration of ownership transfer for all of the real estate of this case in the name of the defendant 1, the defendant 2, and the non-party 1. Pursuant to the Act on the Registration of Real Estate under Actual Titleholder's Name, the registration of ownership transfer for the whole real estate of this case was completed between the plaintiff 1, the defendant 1, the non-party 2, and the non-party 1.

2) Defendants 1 and 2

The Plaintiff is merely involved in the land before the division between Defendant 1, Defendant 2 and the clan of this case as an intermediary at the time the sales contract of this case was concluded, and did not purchase the land before the division with Defendant 1, Defendant 2, and there was no record that a title trust agreement was concluded with regard to the land before the division between the Plaintiff, Defendant 1, and Defendant 2.

3) Defendant 3

Since Defendant 3 and Defendant 1 entered into a mortgage contract on the instant real estate lawfully with Defendant 1, and completed the registration of establishment of a mortgage on the instant real estate, Defendant 3 did not have a duty to express his consent on the registration of cancellation of ownership transfer registration completed under Defendant 1’s name.

B. Determination

1) Whether the Plaintiff is a joint purchaser of the land before the instant partition

The following facts or circumstances can be acknowledged by the overall purport of evidence Nos. 1, 2, and 3-1, 5-1, 2, and 27 of the above No. 1 and Nos. 1, 7 of the above No. 1 and Nos. 4 of the above case’s sales contract to the non-party 1 and the non-party 1’s non-party 2’s non-party 1 and the non-party 2’s non-party 4’s non-party 1 and the non-party 1’s non-party 2’s non-party 4’s non-party 1 and the non-party 1’s non-party 4’s non-party 1 and the non-party 2’s non-party 2’s non-party 1 and the non-party 1’s non-party 4’s non-party 1 and the non-party 2’s non-party 1’s non-party 3’s non-party 1 and the non-party 2’s non-party 1’s non-party 1’.

2) Whether there was a title trust agreement on real estate between the Plaintiff, Defendant 1, and Defendant 2

As acknowledged earlier, the Plaintiff purchased the instant land jointly with Defendant 1 and Defendant 2, and the title transfer registration for the instant real estate was completed in the name of Defendant 1 with respect to the instant real estate, and the ownership transfer registration for the instant real estate was completed in the name of Defendant 2 with respect to the instant real estate. In full view of the following: (a) the instant real estate was concluded after the instant sales contract was concluded, and there was no separate agreement between the Plaintiff and Defendant 1 and Defendant 2, or there was no settlement of the sales amount; (b) the ownership transfer registration for the instant real estate was completed between the Plaintiff, Defendant 1, and Defendant 2 with respect to the instant real estate; and (c) the title trust agreement for the instant real estate was concluded between the Plaintiff, Defendant 1, and Defendant 2 with respect to the instant real estate; and (d) the ownership transfer registration for each of the instant real estate was completed in the name of Defendant 1, and Defendant 2 with respect to each of the instant real estate.

3) Determination as to the Plaintiff’s cause of claim

According to Article 4 of the former Act on the Registration of Real Estate under Actual Titleholder’s Name (wholly amended by Act No. 10203, Mar. 31, 2010), a title trust agreement is null and void, and any change in real rights to real estate is null and void due to the registration completed pursuant to a title trust agreement. As such, a title trust agreement concluded between the Plaintiff, and Defendant 1 and Defendant 2, and a title trust agreement concluded between the Plaintiff, and the remaining three-fourths except for 1/4 of the share of Defendant 1, and a title transfer registration made in the name of Defendant 2 with respect to the remaining three-fourths of share of the instant real estate, and the ownership transfer registration made in the name of Defendant 3/4 with respect to the registration of the ownership transfer of the instant real estate is null and void.

3. Determination as to the claim regarding this case (3) and (4)

A. The relationship between the Plaintiff, Defendant 1, Defendant 2, and Nonparty 1

앞서 인정한 사실과 갑 제10호증, 갑 제12호증, 갑 제13호증, 갑 제14호증의 1, 2, 갑 제15호증, 갑 제16호증의 1, 2, 갑 제17호증, 갑 제26호증, 갑 제29호증의 1 내지 4의 각 기재 및 변론 전체의 취지에 의하여 인정할 수 있는 다음과 같은 사실 또는 사정들, 즉 ㈎ 원고는 이 사건 ㉯ 매매계약이 체결될 당시 그 자리에 참석하였고, 소외 2에게 지급된 금액 중 30,000,000원을 분담하였는데, 위 30,000,000원은 이 사건 ㉯ 매매계약에 따른 이 사건 분할 전 임야의 매매대금 중 계약금 120,000,000원의 1/4에 해당하는 금액인 점, ㈏ 원고 부부는 2008. 12. 19. 이 사건 분할 전 임야의 매도인 소외 2에게 260,000,000원을, 피고 2에게 25,000,000원을 각 송금함으로써 합계 285,000,000원을 지급하였는데, 원고 부부가 분담한 총계 315,000,000원(= 이 사건 ㉯ 매매계약이 체결된 당일의 지급액 30,000,000원 + 2008. 12. 19.자 지급액 합계 285,000,000원)은 이 사건 ㉯ 매매계약에 따른 이 사건 분할 전 임야의 매매대금 1,250,000,000원의 1/4에 해당하는 312,500,000원에 가까운 금액인 점, ㈐ 원고는 피고 2 등으로부터 이 사건 분할 전 임야를 4등분하는 내용의 가분할도(갑 제10호증)를 교부받은 적이 있는 점, ㈑ 소외 1은 원고에게 “이 사건 분할 전 임야는 4인이 공동으로 투자 개발한 땅입니다.”라는 내용의 문자메시지를 발송하기도 한 점, ㈒ 원고와 피고 1, 피고 2 및 소외 1은 공동으로 이 사건 분할 전 임야의 개발을 추진하였고, 그 부대비용을 분담하여 온 점, ㈓ 소외 3은 주식회사 우리은행에서 대출을 받으면서, 이 사건 ③, ④ 부동산을 담보로 제공하였고, 소외 3이 피고 1, 피고 2 및 소외 1에게 ‘이 사건 분할 전 임야는 4인의 공동재산이므로, 혹시 이자를 상환하지 못하여 주식회사 우리은행이 경매를 신청할 경우, 본인의 사실상 소유 지분 1/4 부분에 대하여 소유권을 포기하며, 민·형사상 책임을 통감할 것을 확약합니다.’라는 취지의 확인서(갑 제26호증)를 작성·교부하기도 한 점 등을 종합하여 보면, 원고(또는 원고의 남편인 소외 3)와 피고 1, 피고 2 및 소외 1은 공동으로 자금을 투자하여 이 사건 분할 전 임야를 매수한 후, 개발비용을 분담하여 이 사건 분할 전 임야를 개발하고, 그 결과 발생하는 수익금을 분배하기로 하는 내용의 약정을 체결하였으며, 이에 따라 부동산에 대한 투자·개발을 목적으로 하는 동업체를 결성한 것으로 봄이 타당하다.

B. Determination on the claim for ownership transfer registration under the self-agreement on September 10, 2008

As seen earlier, the Plaintiff (or Nonparty 3) and Defendant 1, Defendant 2, and Nonparty 1 purchased forest land before the division. The Plaintiff, at the time of the purchase of forest land before the division, invested funds jointly with the Plaintiff (or Nonparty 3) at the time of the purchase of the forest land before the division, and purchased forest land before the division. In addition to the agreement to allocate development costs and develop the forest land before the division, if the disposal of the forest before the division is not possible, the Plaintiff’s agreement to own the forest before the division by their own shares was also concluded. As such, the Plaintiff’s agreement to divide the forest land before the division into shares, and the Plaintiff’s ownership of the forest before the division (or Nonparty 3), Defendant 1, Defendant 2, and Nonparty 1 to divide the forest land before the division into shares. In other words, there is no evidence to acknowledge that the Plaintiff’s agreement to own the forest land before the division or to register the ownership of each of the forest land before the division. Rather, the Plaintiff’s assertion that the forest land before the division was not divided into shares.

C. Determination on the claim for ownership transfer registration following the termination of a partnership agreement

As seen earlier, the Plaintiff (or Nonparty 3), Defendant 1, Defendant 2, and Nonparty 1 organized a Dong company with the aim of investing and developing real estate, and purchased the forest land before the instant division. The Plaintiff asserted that: (a) the forest land before the instant division was divided into the instant real estate; and (b) Defendant 1, and Defendant 2, etc. should distribute the proceeds therefrom to the Plaintiff; (c) Defendant 2, etc. were evading this; (d) Defendant 2, etc. notified Defendant 2, etc. of the termination of the said partnership agreement through the delivery of a copy of the statement of grounds of appeal of this case; and accordingly, (e) Defendant 2 is obligated to implement the registration procedure for transfer of ownership due to the termination of the partnership agreement with respect to each of the instant real estate (1/4 shares).

Therefore, as recognized earlier between the plaintiff (or non-party 3) and the plaintiff 1, defendant 2 and non-party 1, purchased forest land before the division of this case by sharing development costs and developing profits accrued from the division of this case shall be deemed to fall under the association agreement under the Civil Act. If the term of the association is not determined by the association agreement, a union member may withdraw at any time (Article 716 of the Civil Act). If a union member withdraws, the union member shall be deemed to be in partnership property at any time, and the remaining union member shall be in partnership property at the time of withdrawal with other union members (Article 719 of the Civil Act). Since a copy of the grounds for appeal of this case, which contains the plaintiff's expression of intent to withdraw from the partnership with the purpose of investing in and developing real estate, is clearly stated in the records that the plaintiff's statement of intent to terminate the association agreement was delivered to the defendant 1 and the non-party 2, and as such, the remaining part of the plaintiff's property belongs to the association member of this case and the non-party 1 and the non-party 2.

4. Conclusion

Therefore, each of the claims against the plaintiff 1 and 3 of this case is justified, and each of the claims against the defendant 2 of this case is justified, and the remaining claims against the defendant 2 of this case shall be accepted within the extent of the above recognition. The judgment of the court of first instance is just in conclusion, and the plaintiff's appeal and the selective claims added in the court of first instance and each appeal by the defendant 1, 2 and 3 of this case are dismissed, since all of the appeals by the plaintiff 1, 3 of this case are without merit. It is so decided as per Disposition.

[Attachment]

Judges Hong-chul (Presiding Judge) Chon-kak (Presiding Judge)