(2) The legal relationship with respect to partnership property where one person withdraws from the partnership relationship with

In a partnership relationship with two persons, the partnership relationship shall be terminated if one of them withdraws from the partnership. However, barring any special circumstance, partnership relations shall not be dissolved, and therefore, partnership property belonging to partnership's joint ownership shall belong to the sole ownership of the remaining union members and shall be calculated upon withdrawal between the withdrawing person and the remaining person.

Article 719 of the Civil Act

Supreme Court Decision 72Da1651 Decided December 12, 1972 (No. 20-3, 188), Supreme Court Decision 86Meu2484 Decided November 24, 1987 (Gong1988, 151), Supreme Court Decision 86Da617 Decided June 14, 198 (Gong198, 1016), Supreme Court Decision 96Da19208 Decided September 6, 196 (Gong196Ha, 2982)

Plaintiff (Counterclaim Defendant) (Attorney Kim Byung-ho, Counsel for the plaintiff-appellant)

Defendant (Counterclaim Plaintiff)

Daegu District Court Decision 94Na9038, 9045 delivered on April 26, 1995

The appeal is dismissed. The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).

The grounds of appeal are examined.

1. Determination as to the principal claim and the main claim of the counterclaim

The judgment of the court below is justified in rejecting the defendant's primary counterclaim that the ownership of the original defendant (Counterclaim plaintiff, hereinafter only the defendant) was owned by the plaintiff (Counterclaim defendant, hereinafter only the plaintiff), and the land and buildings in this case, the ownership transfer registration of which was completed in the future, are the partnership property belonging to the plaintiff and the defendant's business, and are registered in the name of one member for the convenience of business, and that the registration of the plaintiff's name as to the land and buildings in this case should be cancelled as an invalid registration inconsistent with the substantive relation. The decision of the court below is justified in rejecting the defendant's primary counterclaim, and it is not erroneous in the misapprehension of the rules of evidence, misunderstanding of legal principles as to partnership property, or violation of the precedents as pointed out in the process. Thus, the grounds for appeal

On the other hand, the court below accepted the claim for the title of the building of this case for which the plaintiff sought ownership based on the ownership, but according to the facts established by the court below, the registration of ownership transfer was completed due to the performance of the defendant's investment obligation under the business agreement, so such factual relations alone cannot be deemed as the real owner in relation to the defendant. Thus, the court below's judgment otherwise and the judgment of the court below is erroneous in the misapprehension of legal principles as to ownership.

However, as seen next in the determination on the preliminary claim for counterclaim, the defendant asserts that he has withdrawn from the partnership, and even according to the records of this case, it is reasonable to view that the defendant has withdrawn from the partnership. In the partnership relationship with two persons, one of them is to terminate the partnership relationship, unless there are special circumstances, but the partnership relationship is not dissolved, and therefore, the partnership's property which belongs to the partnership's members is not subject to liquidation, belongs to the partnership's sole ownership of the remaining union members, and the withdrawal between the withdrawing person and the remaining person is merely to calculate due to the withdrawal (see Supreme Court Decisions 72Da1651 delivered on December 12, 197, 86Da2484 delivered on November 24, 198, and 86Da617 delivered on June 14, 198, etc.). Thus, the judgment of the court below is not erroneous in the conclusion of this judgment, and it cannot be viewed as affecting the conclusion of this judgment.

2. Judgment on the preliminary claim for a counterclaim

The court below determined that the part corresponding to the defendant's 4/10 shares among the registration of transfer of ownership in the name of the plaintiff as to the land and building of this case is based on the defendant's title trust, and thus, in determining the defendant's preliminary counter-claim claim that the title trust is terminated and the defendant seeks to register transfer of ownership, the land and building of this case is a combination property for the plaintiff and the defendant's business, and the registration of transfer of ownership is completed in the plaintiff's future under mutual agreement for the convenience of the business. Thus, it cannot be deemed that the title trust was made in the plaintiff's name as to the 4/10 shares owned by the defendant, and the Civil Act provides that the joint owner may not claim the division of the shares, and that the registration of transfer of ownership in the name of one of the partners cannot be made if the registration of ownership is completed in the name of one of the partners, as to the real estate which is the business property of this case by agreement among the partners, the other partners cannot claim

In the judgment of the court below, since the land and building of this case are partnership property, the part that the defendant determined that the shares cannot be deemed to have been trusted in trust to the plaintiff is just as seen above.

However, in this case where the defendant appears to have withdrawn from the above partnership, it should not be possible to seek cancellation or transfer of the above registration on the premise that the defendant's withdrawal is a separate theory, and that the defendant's claim for the money is not possible.

Therefore, all appeals against the defendant's principal lawsuit and counterclaim are dismissed as without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Seo Sung-sung (Presiding Justice)