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(영문) 수원지방법원성남지원 2016.01.13 2014가단30444
지분환급대위
Text

1. The part of the plaintiff's main claim against the defendants is dismissed.

2. The plaintiff's defendants each.

Reasons

1. Summary of the parties' arguments

A. The gist of the plaintiff's assertion 1) If a clan title trust the real estate of multiple clans with multiple clans, it cannot be deemed that multiple clans share the real estate as a partnership body, and therefore, the multiple clans share the real estate regardless of the registration of the partnership clans. Therefore, since the real estate of this case is owned by E and the defendants, the plaintiff primarily exercises the right to claim a partition of co-owned property in subrogation of E as the E's obligee, and the auction of the real estate of this case must be distributed at one-third ratio to E and the defendants. 2) Since the real estate of this case is registered as partnership property in the name of E and the defendants, the real estate of this case shall be deemed as partnership

Therefore, the plaintiff, as a preliminary creditor, expresses his/her intention of withdrawal from the partnership by subrogation of E, and the remaining Defendants, as partners, are jointly and severally liable to refund the shares of E out of partnership property to the plaintiff within the scope of the plaintiff's claim.

B. The right to withdraw from the partnership in the summary of Defendant B’s assertion is not the right to exercise the creditor’s subrogation right, and as long as the registration of joint ownership in the name of E is not cancelled, there is no obligation to refund the Plaintiff’s withdrawal from the partnership.

C. The summary of Defendant C’s assertion 1) The Plaintiff sought a partition of the co-owned property against the other owners of the instant real property in subrogation of E in order to preserve the monetary claim against E. If the instant real property is jointly owned by E and the Defendants, the Plaintiff is able to enforce compulsory execution against the E share, and thus there is no need to preserve the Plaintiff’s claim for partition of co-owned property. In addition, the mere fact that E and the Defendants completed a joint ownership registration under the name of trust from the instant clan, it cannot be said that E and the Defendants shared the instant real property externally. 2) The instant real property is F.

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