Whether ownership is succeeded to the heir if part of the real estate joint owners dies;

In a case where a part of the real estate is deceased, the deceased heir does not succeed to the status as a partnership-ownership, and thus the remaining heir shall belong to the sole ownership of the remaining co-ownership, unless otherwise expressly agreed by the partnership-ownership.

Article 7 of the Inheritance Tax and Gift Tax Act

1. The Defendant’s disposition of imposition of gift tax of KRW 115,112,870 against the Plaintiff on July 1, 2007 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts and circumstances of dispositions;

The following facts are not disputed between the parties, or each of the statements in Gap evidence 1-1-2, Eul evidence 1-2, Eul evidence 2-2, Eul evidence 2-3, Eul evidence 4-1, 2, 3, and Eul evidence 5 can be acknowledged in full view of the purport of the whole pleadings:

A. On September 26, 1994, both the Plaintiff and the Plaintiff’s Gyeyang ○○○○○ (the date of December 15, 1935) completed the registration of transfer of co-ownership on the ground of sale and purchase on July 30, 1994 with respect to co-ownership of 749.2416/12 of 128,879 and 749.2439 square meters (hereinafter “instant land”). On September 28, 1993, the Plaintiff and the Plaintiff completed the registration of transfer of co-ownership on each of the co-ownership of 749.2416/16 of 128,879, among co-ownership of 1510 square meters in ○○ apartment 1510 above 1510, 193, 201, 301.37 square meters in 25, 254.15 square meters in 2005 square meters in each of the instant co-ownership share.

B. After that, on February 10, 2004, the Plaintiff and Yang ○○ completed the joint registration of the instant kindergarten building on the ground of the change contract made on February 5, 2004, and on February 16, 2004, the joint ownership of 749.2416/12 of each of the instant land and 128,879.2/128,879.2/128,49.32/2 of each of the instant land was completed on February 5, 2004 on the ground of the change contract made on February 5, 2004.

C. When both ○○○ died on April 18, 2005, the Plaintiff completed the registration of ownership transfer in the Plaintiff’s sole name on July 18, 2005 as to the portion of 128,879.2/128,498.4832 out of the instant kindergarten building and the instant land.

D. As to the registration of change of ownership in the Plaintiff’s sole name on the above combined property, the Defendant deemed that ○○○, the husband of the Plaintiff, and ○○○, his father, inherited shares in the above combined property, and the Plaintiff was donated to the Plaintiff. On July 1, 2007, the Defendant assessed the shares in both ○○ and the above combined property as the standard market price, and imposed a gift tax of KRW 15,112,870 on the Plaintiff (hereinafter “instant disposition”).

E. On January 5, 1994, the Plaintiff and Yang ○○ Office of Education jointly obtained authorization to establish a kindergarten from the head of the instant kindergarten building and site. On January 16, 1998, when the standards for handling affairs related to authorization to establish a kindergarten were amended on or around January 16, 1998, if the ownership of the previous kindergarten building and the school site are two or more joint owners, the authorization to establish a kindergarten was modified only when a representative is appointed with the consent of the joint names and one person applies for the establishment. Since September 1, 1998, the authorization to establish a kindergarten was modified in both separate names. From September 1, 1998 to the instant kindergarten building, the authorization to establish a kindergarten has been made under the name of both ○○○ Offices and operated a kindergarten.

F. Meanwhile, from March 31, 1994 to May 31, 2003, ○○ is responsible for the audit, etc. of ○○ Industrial Co., Ltd., the representative director of which was Kim○, and received remuneration from ○ Pharmaceutical Industry Co., Ltd. from 1993 to 2005, and the Plaintiff is found to have leased real estate due to business registration.

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The plaintiff's assertion

The term "joint ownership" is a form of possession of an article as one of several combinations, and the inheritor of a joint owner who died through the death of one of the two joint owners of real estate shall not succeed to the status as a joint owner, but the pertinent real estate shall belong to the sole owner of the remaining joint owner. Thus, Kim○, the inheritor of ○○○, the heir of the joint owner of the above joint owner, only has the right to claim the return of the investment, and does not succeed to the shares of the joint owner of the above joint owner. Therefore, Kim○, the heir of ○○, the heir of the joint owner, only has the right to claim the return of the investment, and does not inherit the ownership of the above joint owner's shares in the name of the plaintiff. Therefore, Kim○, the plaintiff's transfer of ownership registration under the above joint owner's name cannot be deemed to have been donated to the plaintiff. Thus, the disposition of this case on the premise that the shares owned by ○○ in the above

(2) The defendant's assertion

In order for partnership-ownership to be established, there should be an association with several persons to achieve the common purpose. The plaintiff and Yang ○○, without making any mutual investment in order to carry on a joint business from the above partnership-owned property, shall be deemed to have been combined with the registration title merely without forming the partnership-owned body. Therefore, the legal principles on the original meaning-owned property cannot be applied as it is. In such a case, it is reasonable to deem that the shares of Yang ○, among the above partnership-owned property, fall under the inherited property and were inherited to Kim ○○, and thus, the disposition of this case is legitimate.

(b) Related statutes;

It shall be as specified in the relevant Acts and subordinate statutes.

C. Determination

(1) Establishment of partnership-ownership relations and legal nature

(A) Partnership-ownership of an object is established by statutory provisions or a contract in which two or more partnership entities own the object (Article 271(1) and Article 704 of the Civil Act). Partnership has agreed to conduct a joint business by making mutual investment of two or more persons (Article 703(1) of the Civil Act). When partnership-ownership is established, disposal or alteration of partnership-ownership and disposal of the share of partnership-ownership requires the consent of all the partners (Articles 272 and 273(1) of the Civil Act). Partnership-ownership is prohibited from claiming the division of partnership-ownership (Article 273(2) of the Civil Act).

(B) As seen earlier, the Plaintiff and Yang○○ jointly owned the instant kindergarten building and its site from around 1993 and around 194. ② The Plaintiff and Yang○○○ jointly obtained authorization for establishment of a kindergarten in the instant kindergarten building and site around January 5, 1994. With the revision of the criteria for managing establishment of a kindergarten around January 16, 1998, the authorization for establishment was changed in the name of Yang○○○’s sole name for convenience and operated a kindergarten from around September 1, 1998. ③ The Defendant presented the establishment of a kindergarten to reverse the presumed legal relationship from the above joint ownership registration. In other words, the Plaintiff and Yang○○ were registered as an auditor of ○○ Industrial Co.,, Ltd., the husband Kim○○, the representative director of the Plaintiff, and the Plaintiff and Yang○○○ did not reverse the presumption that the Plaintiff did not have any other joint ownership prior to the establishment of a real estate rental business. In light of the following facts, it appears that the Plaintiff did not have any other legal relationship between the Plaintiff and the two-year joint ownership.

(2) If a partner dies, the relationship between such partner's property and his/her

(A) In a case where a part of the real estate is deceased, the inheritor of the deceased person does not succeed to the status as the partner, barring any special agreement among the co-inheritors, and the pertinent real estate does not belong to the heir, if there are not less than two co-inheritors, the remaining real estate shall belong to the partnership of the remaining co-owners, and if there are only one remaining co-owner, the remaining co-owner shall belong to the sole ownership of the remaining co-owner (see, e.g., Supreme Court Decision 93Da3925, Mar. 25, 1994). Therefore, the status as a co-owner shall not, in principle, be succeeded to the heir as a non-exclusive rights and obligations relationship of the inheritee.

(B) As long as there is no evidence to acknowledge that there is a special agreement between the Plaintiff, a joint owner, and the Plaintiff, a successor, on the instant case, to succeed to the joint ownership portion, the share of ○○ out of the joint ownership portion belongs to the Plaintiff solely to the remaining joint owner upon the withdrawal from the partnership due to the death of ○○○○. Thus, the disposition of this case is unlawful on the premise that the disposition of this case on the premise that the share of ○○○ out of the joint ownership portion of the aforementioned joint ownership portion falls under the inherited property itself is unlawful inasmuch as Kim○, an inheritor, waives the right to claim a share payment equivalent to the share of ○○○○, or exempted the Plaintiff from the obligation to pay the share payment.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.