In a case where Party A and Party B entered into a contract with Party B to construct a new building and jointly operate accommodation facilities, etc. at a new building to distribute profits equally, and Party B made registration of initial ownership in the name of Party B as to new building, the case holding that Party B is obligated to implement the procedure for registration of initial ownership in the name of Party B and Party B, which is the sole ownership of Party B, among the registration of initial ownership, under the name of Party B and Party B.

In a case where Party A and Party B entered into a contract with Party B to construct a new building and jointly operate accommodation facilities, etc. at a new building and distribute profits equally, and Party B made registration of initial ownership in the name of Party B as to the new building, the case holding that Party B and Party B are liable to implement registration of initial ownership in the name of Party B, on the ground that Party A and Party B acquired a new building as a partnership body in accordance with this contract, and Party B had made registration of initial ownership in the name of Party B as to the new building, and that registration of initial ownership in the name of Party B was null and void, on the ground that the registration of initial ownership in the name of Party B was registered as a sole ownership, the registration of initial ownership in the name of Party B and Party B was filed for registration of initial ownership in the name of Party B.

Articles 271(1), 272, 703(1), and 704 of the Civil Act; Article 52 subparag. 5 of the Registration of Real Estate Act

Plaintiff (Law Firm Maap, Attorneys Im Jong-soo et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Jeon-chul et al., Counsel for the defendant-appellant)

Daegu District Court Decision 2014Gahap1282 decided February 5, 2015

December 2, 2015

1. The plaintiff's appeal is dismissed.

2. Upon the plaintiff's preliminary claim added at the trial court, the defendant implemented the procedure for registration of correction as to the right to dismiss the plaintiff as the owner, the defendant (resident registration number 1 omitted), the Ulleung-gun (resident registration number 1 omitted), and the plaintiff (resident registration number 2 omitted), the (resident registration number 2 omitted) Ulleung-gun (resident registration number 2 omitted), among the registration of preservation of ownership completed on July 7, 2014 by the Ulleung-gun (resident registration number 2 omitted), which was completed on July 7, 2014 by receipt of No. 832.

3. The costs of the lawsuit after the appeal shall be borne by the defendant.

The judgment of the first instance shall be revoked.

1. The primary purport of the claim

The defendant shall implement the procedure for the registration of ownership transfer for the reasons of the agreement on August 28, 2013 with respect to the portion of 1/2 of the real estate stated in the attached list to the plaintiff.

2. Preliminary purport of claim

As set forth in Paragraph 2 of the Disposition (the plaintiff added the conjunctive claim at the trial).

1. Basic facts

A. On March 20, 2013, the Plaintiff and the Defendant purchased approximately 231 square meters of land and its ground buildings from the Nonparty, and completed the registration of ownership transfer under the joint name on May 14, 2013. From May 6, 2013, the Plaintiff and the Defendant jointly operated accommodation and restaurant business with the trade name, “○○○○○○○○○○○” in the above ground building (Evidence 1, 2, and 3).

B. After that, on July 30, 2013, the Plaintiff and the Defendant agreed to remove the above ground buildings and to newly construct a new building, purchased ( Address 4 omitted) large scale 175 square meters and ( Address 5 omitted) large scale 16 square meters from the Nonparty, and entered into a contract with the Plaintiff on August 28, 2013, under which the Plaintiff and the Defendant jointly signed the registration of ownership transfer on the ground of each 1/2 of the charges on August 28, 2013 ( Address 3, 4, and 5 omitted) with the burden of each 1/2 of the charges on ( Address 3, 4, and 5 omitted) to jointly operate accommodation facilities, etc. and distribute the profits equally (hereinafter “instant contract”).

C. Accordingly, the Plaintiff and the Defendant: (a) removed the previous building; (b) newly constructed the building on the ground in the name of the Defendant on July 2, 2014 ( Address 3, 4, and 5 omitted); and (c) completed the registration of ownership preservation in the name of the Defendant on July 7, 2014 as the receipt No. 832 of the Daegu District Court’s receipt on July 7, 2014 (Evidence 4).

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 8 (including provisional number; hereinafter the same shall apply), Eul evidence 1, the purport of the whole pleadings

2. Judgment on the main claim

A. The plaintiff's assertion

The Plaintiff and the Defendant agreed to newly construct the instant building on August 28, 2013 and to jointly own its ownership. As such, the Defendant is obligated to implement the registration procedure for ownership transfer on the ground of an agreement on August 28, 2013 with respect to one-half share of the instant building.

B. Determination

A partnership becomes effective when two or more persons have agreed to carry on a joint undertaking by making mutual contribution thereto (Article 703(1) of the Civil Act). A partnership shall become effective when several persons own an article as a partnership pursuant to the provisions of Acts or a contract, and the rights of the partnership-ownership shall extend to the whole of the articles jointly owned (Article 271(1) of the Civil Act).

As seen earlier, in light of the fact that the Plaintiff and the Defendant jointly assumed the costs of building and jointly built the instant building and jointly shared accommodation business and distribute profits therefrom equally, it is insufficient to recognize that the Plaintiff and the Defendant acquired the instant building as a partnership body under the instant contract, and the entries of Gap evidence Nos. 1 and 8 submitted by the Plaintiff alone are insufficient to support that “at the time, the Plaintiff and the Defendant agreed to share the instant building,” and there is no other evidence to support this, the Plaintiff’s assertion is without merit.

3. Determination on the conjunctive claim

A. Determination on the cause of the claim

According to the above facts, since the plaintiff and the defendant are recognized to have acquired the building of this case as a partnership body under the contract of this case, the preservation registration of the building of this case shall be registered as joint ownership of the plaintiff and the defendant, and therefore, the defendant's registration of preservation of ownership of the building of this case shall be null and void for the defendant's sole name. The lawsuit seeking the cancellation of registration of preservation of ownership of invalidation of the ground for joint ownership is an act of preservation of joint ownership and can be done by each of the joint owners (see, e.g., Supreme Court Decision 96Da16896, Sept. 9, 197). The plaintiff can seek the cancellation of registration of preservation of ownership against the defendant.

In full view of the following points, in the event that registration of preservation of ownership of real estate owned by a joint owner has been registered as a sole owner, the joint owner may file a request for registration of correction, instead of cancellation of registration of preservation of ownership of the joint owner, and thus, the Defendant, barring special circumstances, is obliged to implement the procedure for registration of correction on the right that the name of the Defendant is bearing the name of the Plaintiff and the Defendant under the name of the joint owner of the Plaintiff and the Defendant, among the registration of preservation of ownership completed on July 7, 2014 by the Ulsan District Court No. 832.

1) Generally, registration of correction of a registered titleholder is not permissible if it exceeds the scope recognized as identical to the registered titleholder, and even if the registered titleholder is an unentitled person, it cannot be done by means of registration of correction to replace the registered titleholder with another person (see Supreme Court Decision 95Da2135, Apr. 12, 1996, etc.).

2) According to Article 2-2(b)(3)(b)(b)(3)(b) of the "Guidelines for Business Procedure Concerning the Registration Procedure for Correction (Rules No. 1421)", registration of the sole ownership may be corrected as the joint ownership, or the joint ownership may be corrected as the sole ownership. According to Article 2-3(1)(a)(c)(a) of the "Regulations for Registration Procedure," identification of the sole ownership refers to correcting the name, address, resident registration number, etc. of the registration titleholder, and increase or decrease in the number of the registration titleholders (i.e., the sole ownership or the sole ownership) does not change the identification of the registration titleholder, which shall be dealt with pursuant to Article 2-2(b)(b)(a) of the same

B. Judgment on the defendant's assertion

1) Claim on the termination of the instant contract

The Defendant asserts to the effect that the instant building does not constitute a combination of enterprises any longer since the Plaintiff’s obligation to bear 1/2 as stipulated in the instant contract was entirely not fulfilled, and the instant contract was terminated by the service of Defendant’s preparatory document on August 25, 2015.

However, in the partnership agreement, only requests for dissolution of the partnership, withdrawal from the partnership, or expulsion from other union members can be made, and it cannot be said that the other party should bear the obligation to restore the original state due to the cancellation of the partnership agreement as in the general contract (see Supreme Court Decision 94Da7157 delivered on May 13, 1994, etc.). Thus, the defendant's above assertion on a different premise is without merit without any need for further review.

2) Claim for dissolution of partnership

The Defendant asserts to the effect that the building of this case is no longer a combination of enterprises since the trust relationship between partners was destroyed due to the termination of the contract of this case and the association was dissolved and only distributed residual property.

In this case, the provisions governing the division of co-owned property shall apply mutatis mutandis to the division of co-owned property (Article 271 of the Civil Act); ② in extenuating circumstances, each partner may request dissolution of the partnership (Article 720 of the Civil Act); in the case of dissolution of the partnership, residual property shall be distributed in proportion to the value of the investment of each partner (Article 724 of the Civil Act); ③ in the case of dissolution of the partnership, the partnership property shall continue to be owned by partnership members and shall continue to exist until the completion of liquidation (see Supreme Court Decision 92Da28075 delivered on October 9, 1992, etc.).

Therefore, even if an association whose members are the Plaintiff and the Defendant is dissolved, the instant building still remains in the partnership with the Plaintiff and the Defendant until the instant building is divided into the Plaintiff and the Defendant (the Defendant is currently undergoing a lawsuit against the Plaintiff to exercise the right to claim the distribution of residual property following the dissolution of the association (Tgu District Court Port Branch Branch 2015No304233), and the Defendant’s above assertion is without merit.

3) The assertion to waive the right under the instant contract

The defendant asserts to the effect that the building in this case is no longer a combination of enterprises since the plaintiff did not perform its duty to bear 1/2 as stipulated in the contract in this case and all rights under the contract were renounced pursuant to Article 5 of the contract.

However, there is no dispute between the parties as to "the plaintiff bears the expenses of KRW 140,00,000 for registration of initial ownership relating to the building of this case". Thus, the plaintiff is deemed to have fulfilled the obligation to bear the expenses of KRW 1/2 as stipulated in the contract of this case, and it is insufficient to recognize that the plaintiff renounced all the rights under the contract of this case only with the descriptions of the evidence Nos. 1 through 20. Thus, the defendant'

4) Grounds for abuse of rights or violation of good faith principle

The defendant asserts that the plaintiff's filing of the lawsuit in this case concerning the right to the building of this case constitutes an abuse of right or a violation of the good faith principle and thus, it cannot be allowed.

However, the fact that the Plaintiff partially fulfilled the investment obligation under the contract of this case is as seen earlier. Thus, the Plaintiff’s assertion that the building of this case is union property cannot be seen as an abuse of rights or a violation of the good faith principle. Thus, the Defendant’s assertion is without merit

4. Conclusion

Therefore, the plaintiff's primary claim is dismissed as it is without merit. Since the judgment of the court of first instance is just in conclusion, the plaintiff's appeal is dismissed as it is without merit, and the plaintiff's preliminary claim added in the court of first instance is accepted as reasonable, and it is so decided as per Disposition.

[Attachment]

Judges Jin Sung-chul (Presiding Judge) Kim Tae-tae