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(영문) 대법원 2017.12.22 2017다265112

계약금 반환등

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The judgment below is reversed, and the case is remanded to the Gwangju High Court.

Reasons

The grounds of appeal are examined.

1. As to the dismissal of the method of attack by actual time, the establishment, withdrawal, and the misapprehension of the legal principles regarding the claim for dissolution, the lower court determined that the association whose members are the original and the defendant under the instant trade contract was established, and that the said association was dissolved due to unavoidable reasons upon the Plaintiff’s request for dissolution on the grounds of its stated reasoning.

Examining the record in accordance with the relevant legal principles, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine regarding the rejection of the method of attacking actual time limit, the establishment of and withdrawal from the association,

2. (1) Unless otherwise agreed by the parties, the residual property and its value to be distributed to the union members are determined at the time of completion of the liquidation procedure, in principle, cannot be claimed for distribution of residual property under the condition that the liquidation procedure has not been completed.

Provided, That where the partnership's remaining assets remain without being treated as remaining assets and only the distribution of the remaining assets remains, each partner may, without undergoing separate liquidation procedures, demand the association members who hold the remaining assets in excess of the distribution ratio within the scope of their residual assets distribution ratio.

In order to make it possible to make a claim for distribution, it is necessary to first determine the details of all residual assets of the union, the legitimate ratio of distribution, and the details of possession of each member's residual assets.

(2) On June 11, 2015, the lower court held that a member, among the partners, who invested an investment pursuant to an agreement, was solely excluded from the partnership relationship with the parties, as a result, immediately influencing the relationship between the parties, after having invested the investment pursuant to the agreement.