[2] The contents and limitations of the court's exercise of the right to ask for clarification

1. Regarding ground of appeal No. 1

The lower court maintained the first instance judgment dismissing the Plaintiff’s primary claim, on the ground that the evidence alone presented by the Plaintiff was insufficient to recognize that the Defendants excluded the Plaintiff from the process of the concession agreement in violation of the amended Joint Operation Convention or the good faith principle, and that it was insufficient to detect the content of the agreement on the working group prior to the conclusion of the instant contract and did not notify the Plaintiff

The recognition of facts and the selection of evidence, which are the premise thereof, belong to the discretionary authority of a fact-finding court unless they go beyond the bounds of the principle of free evaluation of evidence. Examining the reasoning and record of the lower judgment, the lower court’s judgment does not seem to have exceeded the bounds of the principle of free evaluation of evidence or failed to exhaust

2. Regarding ground of appeal No. 2

A. Whether the contract for construction works entered into by the joint contractor is a contract with the joint contractor to perform the part of the joint contractor's share independently by each of the members of the joint contractor, or a contract with the joint contractor to perform jointly is a matter of fact-finding basically. In examining the record, the lower court did not err by misapprehending the relevant legal doctrine or by violating logical and empirical rules, contrary to what is alleged in the grounds of appeal.

B. (1) Since a joint venture is basically of the nature of a partnership under the Civil Act (see, e.g., Supreme Court Decision 9Da49620, Dec. 12, 2000); a claim against a contractor due to the execution of a joint venture project is, in principle, attributable to the members of a joint venture project; and barring any special circumstance, one of the members is not entitled to claim payment at will against the contractor at the rate of contribution (see, e.g., Supreme Court Decision 97Da4401, Aug. 26, 1997). However, even a joint venture with a joint venture with a method of joint performance, the claim against the contractor may be divided and reverted to each of the members according to the ratio of shares, not to the joint venture with the contract for construction project, and may be made explicitly (see, e.g., Supreme Court en banc Decision 2001Da7532, Jan. 11, 2002).

(2) According to the reasoning of the lower judgment, the lower court determined that the instant joint supply and demand organization constituted a joint performance method partnership under the Civil Act, and furthermore, the instant joint supply and demand organization constituted a joint performance method partnership, taking into account the circumstances as set forth in its reasoning, and further, the instant joint supply and demand organization’s claim for construction payment is a partnership claim attributable to all members of the joint supply

(3) According to the facts established by the lower court and the evidence duly admitted by the lower court, the instant contract includes general conditions of the construction contract, special conditions of the construction contract, and joint supply and demand agreement. Article 35 of the General conditions of the construction contract provides that a member of the joint supply and demand organization shall submit an application for the payment specified by classification for each member to the representative of the joint supply and demand organization or the representative determined by the Steering Committee of the joint supply and demand organization in the event that there are unavoidable reasons to the representative of the joint supply and demand organization, and the representative shall claim for the payment of the payment to the project operator. Unless otherwise stipulated in the instant contract, the project operator shall pay the payment to each member of the joint supply and demand organization by determining the amount of payment according to the terms and conditions inspected at the date of the payment for the construction cost,

According to the terms and conditions indicated in the above facts, the contract of this case concluded between the defendant Antainment Co., Ltd. (hereinafter referred to as "Antainment") and the joint contractor of this case is deemed to have an agreement between the joint contractor and the joint contractor of this case, and the joint contractor of this case shall be deemed to have a claim for the construction cost as the joint contractor, and it shall not be deemed that each of the members of the joint contractor shall have the right to claim the construction cost directly

In addition, even though the provisions governing the claim for the construction cost of a joint contractor, which is the Accounting Rules of the Ministry of Strategy and Finance (2200.04-136-19), or the Operational Guidelines of Local Government Joint Contracts, which is the Rules of the Ministry of the Interior and Safety, belong to each of its members, it cannot be said that the original owner of the construction work, even if the government or local government is not a contractor, is the government or local government, and the above established rules can not be applied as a matter of course. Thus, there is no ground to view that the above established rules were included explicitly or implicitly in the contract of this case, even after examining the record of the contract of this case. Therefore, the ground of appeal on the premise that the above established rules are applied to the contract of this case is without merit, and therefore this part of the ground of appeal cannot be accepted.

3. Regarding ground of appeal No. 3

According to the records, the defendants argued that the plaintiff's conjunctive claim seeking the payment of the progress payment of the construction work of this case from the first instance to the joint performance agreement of this case is a contract in the form of joint performance, and therefore, the contract of this case is a contract in the form of joint performance, apart from seeking the settlement of shares due to the withdrawal from the association, the plaintiff who is one of the members of the partnership independently claims the payment of the construction work of this case against the contractor is unlawful. The plaintiff

As such, as long as whether the instant contract is a contract for the method of sharing shares or a contract for the method of joint performance has been continuously controversial since the first instance trial, it can be sufficiently predicted that the Plaintiff, which is only one member of the partnership, may bring an illegal lawsuit due to lack of the party’s eligibility. Therefore, it cannot be said that the court’s failure to exercise its right of explanation by failing to perform its duty of explanation or failing to perform its duty of explanation as alleged in the grounds of appeal. This part of the grounds of appeal is without merit.

4. Regarding ground of appeal No. 4

The court's exercise of the right to ask for Elucidation is against the principle of pleading and goes beyond the limit of the exercise of the right to ask for Elucidation (see, e.g., Supreme Court Decision 91Da35106, Jun. 9, 1992). The court's exercise of the right to ask for the submission of evidence as to the legal effect which the parties did not assert or demand the submission of independent means of attack or defense, etc.

In light of the above legal principles, in this case, the court below rejected the plaintiff's claim for share refund or distribution of residual property, and did not urge the plaintiff to assert and prove his/her claim for share refund or distribution of residual property. It cannot be said that there was an error of law by failing to perform his/her duty of explanation. Further, since the claim for share refund or the claim for share refund or the claim for share refund or the claim for share distribution based on the premise of the withdrawal or dissolution of the association is entirely different from the grounds for the occurrence of the right, the plaintiff

5. Conclusion

Therefore, all appeals are dismissed, 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 on the bench.

Justices Kim Chang-suk (Presiding Justice)