In establishing a foundation, the time of attribution of donated property

In establishing an incorporated foundation, the provisions of Article 48 of the Civil Act that the contributed property belongs to a corporation is merely a standard to determine the relationship between the contributor and the corporation, and even where the contributed property is real estate, registration is not required in addition to the establishment of the corporation. However, in relation to the third party, since the act of contribution is a juristic act, it is necessary to register the right to the contributed property as it is a right to the corporation.

Article 48 of the Civil Act

Plaintiff 1 and five others

Choung Bank Co., Ltd. and three others, Counsel for the defendant-appellant-appellee and two others

Seoul High Court Decision 200Na1448 delivered on August 1, 200

Seoul High Court Decision 77Na1241, 1242 Decided January 24, 1978

All parts of the original judgment against the defendant, etc. (Appellants, etc.) shall be reversed, and the case shall be remanded to the Seoul High Court.

The defendants' grounds of appeal are also examined.

According to the reasoning of the judgment of the court below, on April 10, 1956, the deceased non-party 1 contributed 760 square meters (hereinafter referred to as the "land of this case"), which was owned by the deceased non-party 1, to establish a foundation which is a party intervenor, for the purpose of establishing a chidity corporation in the Gwanak-gu, Seoul Special Metropolitan City ( Address omitted) which is its survival, and thereafter the above foundation foundation completed the establishment registration of the 20th of the same month with the establishment permission of May 9, 1960. On March 10, 1965, the deceased non-party 2 of the above land was registered, and the provisional registration was made in order with each co-ownership transfer registration as stated in the purport of participation, such as the defendants, co-defendant 3, 4, and 5 of the court below, and the land of this case did not belong to the plaintiff's own property rights and the plaintiff's claim for the provisional registration after the establishment registration of the foundation of this case was made under the name of the above plaintiff 2 and the non-party.

However, Article 48 of the Civil Act provides for the attribution of contributed property in relation to a juristic person with a contributor of property in its function, and the provision provides for the attribution of contributed property in relation to a juristic person with a contributor of property is merely a basis for the relative determination of the relationship with a juristic person in relation to the attribution of contributed property in its function. If a juristic person is established based on the act of contribution in relation with the contributor of the contributed property, the contributed property shall belong to the juristic person at the time of establishment of the juristic person in accordance with the above provision of the Civil Act. Even in cases where the contributed property is real estate, it is reasonable not to register except the above requirement (the formation of the juristic person) but to establish the juristic person in relation with the above two parties (the act of contribution as a constituent element of the foundation does not require the act of contribution in addition to the formation

In accordance with the original legal concept, the concept of change in real rights does not necessarily have any theoretical or practical reason or need to accept it as a fixed form of substantive reconciliation, as it is in all other fields, and it cannot be deemed that the above provision of the Civil Act is an theoretical or factual reason to be unreasonable, and it cannot be said that there is a reason to accept the above provision with the purport as above. In addition, it can be said that accepting the above provision as a relative purpose would lead to a result that would lead to the safety of transaction at the same time consistent with the intent of the contributor and contribute to the safety of transaction at the same time. In addition, it can be said that the corporation would be able to expect the result of the corporation's property loyalty in relation to the property contributed to a third party after its formation so that it can expect the corporation to take necessary measures to secure rights in relation to the property contributed to a third party, and that the original disclosure system does not have to be properly harmonized with the interests of the contributor and the corporation and the third party (the original disclosure system is recognized as being based on an individual property disadvantage, and it does not have to be justified as the result of the corporation.

Therefore, in relation to a third party, it is reasonable that the act of contribution is a juristic act, and the right to the property belongs to the juristic person of the property contributed is required to be registered in addition to the establishment of the juristic person.

Therefore, in different opinions from the above opinion of party members, the judgment of the court below which received the objection of party members, is erroneous in the legal principles under Article 48 of the Civil Act, and thus, it cannot be an illegal measure such as incomplete hearing or lack of reasoning. Accordingly, all of the parts concerning the loss of the defendant, etc. on the original judgment (excluding the part in favor of the defendants among the original judgment) in accordance with Articles 400 and 406 (1) of the Civil Procedure Act shall be reversed, and the case shall be remanded to the Seoul High Court which is the original judgment, and it

This decision is an opinion with the assent of all participating judges, excluding Lee Young-chul, a civilian, afluor, afluor, afluoral, afluoral, an interest, and a leaples.

A summary of the Majority Opinion is as follows.

In other words, in the interpretation of Article 48 (1) of the Civil Code, when a foundation is established through a preliminary disposition, the property contributed to the foundation shall not require a registration in the case of between the contributor of the property and the corporation, but at the same time become the property of the corporation. However, in the case of the relationship between the corporation and the third party, the principle of Article 186 of the Civil Code is that the registration should be transferred in the future of the corporation, and the interpretation of Article 48 of the Civil Code shall be theoretically or factually appropriate and result in contributing to the safety of the transaction.

However, the above theory is not only an interpretation that is not based on the law that disregards the provisions of Article 48 of the Civil Act, but also an interpretation that is not contrary to the legislative spirit of Article 48 and contributes to the safety of transaction, but also does not cause confusion in transaction.

In other words, since the establishment of the articles of incorporation and the contribution of the foundation are the act of establishing the foundation property that is the act of establishing the foundation property, that is, the act of establishing the foundation property that is the act of establishing the foundation property, the foundation that does not have the property property can not actually exist, the Civil Code Article 48 aims to thoroughly maintain the foundation's

In other words, the legislative spirit of Article 48 (2) can also be seen as 48 (2).

In other words, when establishing an incorporated foundation by will, even before the formation of the foundation, the property contributor is deemed to have accrued from the time of death of the foundation, that is, when the property contributor is deemed to have accrued from the time of his/her death, and there is a concern that his/her property might be infringed by his/her heir, etc. from the time of his/her death to the time of his/her establishment. Therefore, the purpose of Article 48(1) is to thoroughly prevent the deviation of the property of the foundation from being recognized at the time of his/her death and to prevent it from becoming a non-property.

However, the majority opinion does not agree with the provisions of Article 48 (1) of the Civil Code, anywhere the property contributor and the corporation need to transfer their registration, but there is no reason to interpret that the registration between the corporation and the third party is needed. In this case, it shall be deemed that Article 48 (1) of the Civil Code provides that the case where a real right is acquired without registration under the provisions of the law under the provisions of Article 187 of the Civil Code shall be sufficient as the Civil Code if the transfer of registration is necessary. If the majority opinion wants the effect of the law, it shall be stated in the provisions of Article 48 of the Civil Code, and it shall not be stipulated that "it shall become a corporation's property from the time of the incorporation of the corporation." In addition, as mentioned above, it shall be viewed as the provisions of Article 48 (1) and (2) of the Civil Code and the legislative purport of Article 48 (1) and (2) of the Civil Code shall not be enacted.

The Majority Opinion’s complicated interpretation of Article 48(1) of the Civil Act is derived from the fact that in a case where a registration remains in the name of a fund contributor even after the contribution was made by a third party, a third party should be protected when there is a transaction, such as purchase from a fund contributor. However, it is intended to protect a third party without any basis, and it is merely a corporation that deviates from the property which is an element of the foundation’s establishment and is sentenced to punishment. In addition, it is established in accordance with the legislative intent of Article 48 of the Civil Act. In addition, it is established in the form, and in reality, in a case where an incorporated foundation that does not have property as an incorporated foundation performs an external juristic act as a single legal entity after its establishment, it can be said that the Majority Opinion contributes to the safety of transaction. Ultimately, the Majority Opinion’s interpretation can only be said to prevent any infringement of the property of an incorporated foundation, and thus, it is unreasonable to interpret the structure of the foundation without any legal intent or to make any change in the form of a real right under Article 186 of the Civil Act.

Justices Lee Young-pop (Presiding Justice) Ha Young-gu (Presiding Justice) Jin-Jak-Jak-Jak-Jak-Jak-Jak-Jak-Jak-Jak-Jak-Jak-Jak-Jak-Jak Kim Jong-Jk-Jak