beta
(영문) 서울고등법원 2017.01.26 2016나8468

정산금 등

Text

1. The plaintiff's appeal is dismissed.

2. The costs of lawsuit after filing an appeal shall be borne by the Plaintiff.

3. The Plaintiff’s act on January 2016

Reasons

1. Basic facts

A. A. On September 2003, the Plaintiff entered into an agreement on the same business with the trade name “G” from E and the Incheon Cheongjin-gun to operate liquefied petroleum gas and the wholesale and retail business together. E invested each real estate listed in the separate sheet (hereinafter “each real estate of this case”) in kind.

B. The Plaintiff and E, around April 2004, purchased “H” and expanded the business, made an investment in Defendant C with the Plaintiff and E to enter into a contract with the Plaintiff to operate the business (hereinafter “instant partnership”). The Plaintiff and E agreed that the share in the partnership relationship will be 1/3, respectively.

However, for convenience, the Plaintiff: (a) lent the name of the counterclaim Defendant, (b) Defendant C, the wife, and (c) drafted a partnership agreement in the name of E, counterclaim Defendant, and Defendant D; (b) on April 23, 2004, E was registered as a joint business proprietor with the counterclaim Defendant, and Defendant D as a joint business proprietor.

C. After that, E withdrawn from the partnership relationship of this case on April 2005. Among each of the real estate of this case, the registration of ownership transfer was completed on May 24, 2005 with respect to each of the real estate of this case, and on August 5, 2005 with respect to each of the real estate of this case, on the grounds of each transaction on August 5, 2005.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, Eul evidence 1-1, the purport of whole pleadings

2. Denial of an exchange or amendment of the purport of the claim;

A. The Plaintiff, in the first instance trial from around 2005 to the Plaintiff without the Plaintiff, was in the form of directly receiving gas from the gas filling stations in large-scale business tank in the name of G, and was paid by the Plaintiff on behalf of the Plaintiff as the Plaintiff did not pay the value-added tax arising therefrom, and the Plaintiff filed a claim against the Defendants for monetary payment by return of unjust enrichment, and the court of first instance ruled that the Plaintiff’s claim is dismissed. In response to the appeal, the Plaintiff filed an application for alteration of the purport of the claim and the cause of the claim on November 15, 2016.