2. C

2. The plaintiff's claim against the defendant B is dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff and Defendant B Co., Ltd. is assessed against the Plaintiff, and the part arising between the Plaintiff and Defendant C is assessed against

4. Paragraph 1 can be provisionally executed.

(a) Purchase of land by Defendant B and completion of urban life-type housing construction projects;

1) Defendant B Co., Ltd. (hereinafter referred to as “Defendant B”) purchased an urban-type residential housing construction project (hereinafter referred to as “instant housing construction project”) in order to operate a construction business, etc. with the representative director, and completed the registration of transfer of ownership under Defendant B’s name on August 29, 2012. (2) Defendant B obtained a construction permit to newly construct an urban-type residential housing with the 4th underground floor and 15th above ground on each of the instant housing sites (hereinafter referred to as “instant building permit”).

3) After the completion of seizure and provisional seizure on each of the instant sites, Defendant B’s economic situation aggravated, such as there was a decision to commence the auction, and thus, the instant project was at a risk of becoming ineffective.

B. Conclusion of a partnership agreement with the Plaintiff and Defendant B

Defendant B agreed to operate the instant business with the Plaintiff on May 15, 2014 (hereinafter referred to as “instant trade agreement”). The main contents of the instant trade agreement are as follows.

Article 3 (Ratio of Work Apportionments and Shares) 1. A (Plaintiffs) and 1.2. A shall have the authority and duties of the props. B shall be transferred to B (Defendant B) for the sake of the Authority of the props. 2. A shall invest 1.5 billion won of the land in order to facilitate the Project. The amount of 1.5 billion won of the investment shall be disbursed for the portion related to the Project in consultation between A and B. 3. A shall have the right to preferentially distribute 200% of the total amount of the investment in the trust company in the following order: (a) A shall have the right to allocate the proceeds accrued at the time of completion of the Project except for the amount of 1-3 of Article 2 from the proceeds derived from the completion of the Project; and (b) A shall have the authority and duties of B and the authority of the Si Corporation to exercise the rights and authority of the Si Corporation 1.2.2.2.2.2.2.00 million won of the land to be transferred to A, and the title of the project shall be omitted.

C. As of May 15, 2014, the Plaintiff completed the registration of ownership transfer in the name of the Plaintiff on June 11, 2014 between Defendant B and Defendant B by preparing a sales contract with respect to each of the instant sites, which is 3.5 billion won in total, (hereinafter “instant sales contract”).

D. Defendant B’s notice of termination of the instant partnership agreement

1) On November 4, 2014, November 19, 2014, and November 20, 2014, Defendant B notified the Plaintiff that the instant sales contract and the instant sales contract will be terminated on the ground that, even if Defendant B completed the registration of ownership transfer of each of the instant land under the Plaintiff’s name on June 11, 2014, the Plaintiff paid to the creditors a total of KRW 52 million among the investment amount of KRW 1.5 billion, which was agreed to pay by November 4, 2014, the Plaintiff paid a total of KRW 1.5 billion to the creditors, and that it is no longer possible to conduct a joint business, and thus, the instant sales contract and the instant sales contract are terminated.

2) On November 18, 2014, the Plaintiff responded to the purport that “The amount of the investment made up to the present date to Defendant B shall be KRW 1,231,501,870, and the due date for the payment of KRW 1.5 billion is not fixed, and that “a separate claim for damages shall be made for losses arising from the unilateral notice of termination.”

3) The instant building permit was revoked on December 23, 2014 on the ground that the construction was not commenced within two years from November 22, 2012, which was the date of the building permit.

4) On March 18, 2015, Defendant B filed a lawsuit against the Plaintiff, etc. seeking the cancellation of the ownership transfer registration of each of the instant land in the name of the Plaintiff due to the instant sales contract and the cancellation of the instant sales contract. On August 25, 2016, Defendant B filed a lawsuit against the Plaintiff, etc. to seek the cancellation of ownership transfer registration of each of the instant land in the name of the Plaintiff. On March 18, 2015, the said court rendered a judgment against Defendant B against the Plaintiff (Seoul High Court 2016Na208909) that “The Plaintiff completed the registration of ownership transfer in the name of the Plaintiff to secure investment funds, and the instant sales contract was concluded formally, and even if Defendant B’s claim against the Plaintiff is a claim for the distribution of residual property following the dissolution of the partnership, it

E. Fraud and criminal punishment of Defendant C’s 20 million won against the Plaintiff

1) Meanwhile, Defendant C, as the representative director of Defendant B, demanded the Plaintiff to pay KRW 20 million as design expenses for the purpose of design modification in relation to the instant project, although there was no intent to use it as design expenses. The Plaintiff paid KRW 20 million to the account in the name of F designated by Defendant C around July 17, 2014, which was around that time.

2) Around January 2015, the Plaintiff filed a complaint against Defendant C as a crime of fraud against the facts described in paragraph (1) with an investigative agency. After that, Defendant C was convicted of a fine of KRW 10 million as a crime of fraud with respect to the above criminal facts that, on June 23, 2016, Defendant C, by deceiving the Plaintiff and deceiving the Plaintiff KRW 20 million from the Plaintiff. Since then, the above judgment became final and conclusive through both of the prosecutions and the Defendant C’s appeal, and Defendant C’s appeal.

[Ground of recognition] Facts without dispute, Gap's entries in Gap's 1 through 7, 9, 10, 30, 34, 35, 36, 40, 48, 49 (including branch numbers, hereinafter the same shall apply) and the purport of the whole pleadings

2. Determination as to the plaintiff's claim against the defendant B

A. The parties' assertion

1) Plaintiff

A) After the conclusion of the instant partnership agreement, the Plaintiff was running the instant business by investing a large amount of money in each of the instant lands, and repaying the Defendant B’s debt to the provisional attachment right holder, seizure right holder, and mortgagee, etc., but the Defendant B terminated the instant partnership agreement.

B) From May 15, 2014 to March 27, 2017, the Plaintiff paid KRW 4,741,852,440 (the amount calculated by deducting KRW 20 million on July 17, 2014) with the aggregate of KRW 15,00, KRW 2,500, KRW 300, KRW 400, KRW 700, KRW 400, KRW 97, KRW 400, KRW 250, KRW 400, KRW 300, KRW 500, KRW 2,500, KRW 400, KRW 97, KRW 400, KRW 500, KRW 2,500, KRW 300, KRW 500, KRW 2,500, KRW 300, KRW 405, KRW 940, KRW 140, KRW 7,205, KRW 940, KRW 305,2016,25,2940.

C) Therefore, even if the Plaintiff did not have any residual property to be distributed to Defendant B, Defendant B contests the existence of the claim for the settlement of accounts against the Plaintiff. Therefore, the Plaintiff seeks confirmation against Defendant B that there was no obligation for the settlement of accounts under the instant trade agreement.

2) Defendant B

A) A partnership under the instant partnership agreement was dissolved upon Defendant B’s request for dissolution, and the Plaintiff and Defendant B undergo liquidation procedures as prescribed by the Civil Act. The Plaintiff and Defendant B shall complete the existing business and complete the procedure to determine the remainder of active property after repaying the partnership’s obligations, etc., and then distribute the remaining property to the partnership members in proportion to the value of the investment of the partnership members. Before the completion of the procedure, the partnership’s property still belongs to all

B) The method of settlement between the Plaintiff and the Defendant B is the method of settlement as to the liquidation procedure. ① It is appropriate to transfer the ownership of each of the instant land to Defendant B according to the instant sales contract and to settle the accounts to return the money equivalent to the investment amount that the Plaintiff received to the Plaintiff. ② If such settlement agreement is not acknowledged, the remaining assets remaining after the sale of each of the instant land through an auction, etc. shall be distributed in proportion to the value of the investment of the Plaintiff and the Defendant B, a partner.

C) In computing the value of the investment in this case, Defendant B invested a total of KRW 4,825,284,560 ( KRW 4,100,00 for each site of this case; KRW 38,694,560 for acquisition tax; KRW 338,690,00 for each site of this case); on the other hand, the Plaintiff asserted that the total of KRW 4,64,808,928 for the instant business was invested by 4,64,928; however, the Plaintiff did not pay KRW 1390,000 for the remaining agreed amount of KRW 130,000 for May 22, 2014; KRW 501,590 for the interest accrued from the Plaintiff’s cause attributable to the Plaintiff; KRW 591,590,320 for each of the instant land of this case; KRW 300,000 for the remaining amount of the Plaintiff’s remaining amount of the housing site of this case; KRW 25001,3005,29,20005.

(b) Markets:

1) Whether the partnership under the instant partnership agreement has been dissolved

A) Relevant legal principles

Article 720 of the Civil Act provides that each partner may file a claim for dissolution of a cooperative. The claim for dissolution of a cooperative is to suspend active activities to carry out a business that is its purpose to extinguish the cooperative and enter the stage to adjust the property of the cooperative. If a cooperative gives notice of termination to a certain partner under the circumstances where trust is broken due to infertility between the parties to the cooperative and the withdrawal or expulsion of a specific partner is unable to expect smooth operation of the cooperative's business, then it shall be deemed a claim for dissolution of the cooperative that is accompanied by the extinction of the cooperative (see, e.g., Supreme Court Decision 2013Da29714, 29721, Jun. 11, 2015). The phrase "inevitable reasons" in this context refers to an objective reason that it is deemed difficult to achieve the objectives of the cooperative due to the aggravation of its property status or the aggravation of its business due to the deterioration of its business status following changes in economic circumstances, or where it is difficult to expect smooth operation of the cooperative's business due to the destruction of trust relationship between the parties to the cooperative (see, etc.

B) Determination

(1) The relationship between the Plaintiff and Defendant B based on the instant partnership agreement

(A) The following circumstances revealed by each of the above evidence, namely, Defendant B entered into the instant partnership agreement with the Plaintiff during the period when the economic situation worsens and the project of this case was at the risk of becoming infinite, and Defendant B entered into the instant partnership agreement with the Plaintiff. The instant partnership agreement, first of all after the completion of the instant partnership agreement, agreed to pay to the Plaintiff an amount of KRW 3 billion, which is KRW 1.5 billion as agreed upon, and distribute the remaining earnings to the Plaintiff. The Plaintiff stated in the investigative agency that the instant partnership agreement was a joint business with the Defendant B, but it was caused criminal complaint on the ground that the Defendant B excluded himself from the investment deposit only during the instant partnership, and that it was physical coloring other investors. In light of the above, there is room to regard the instant partnership agreement as the Plaintiff’s investment contract with the Defendant B.

(B) However, as seen earlier, the Plaintiff and Defendant B entered into the instant partnership agreement and agreed to jointly operate the instant business, it is reasonable to deem that the instant partnership agreement constitutes a partnership agreement (hereinafter referred to as “partnership association based on the instant partnership agreement”) on the grounds that the Plaintiff and Defendant B jointly invested KRW 1.5 billion in investment, and Defendant B jointly invested each of the instant sites and agreed to operate the instant business (hereinafter referred to as “instant partnership”).

(2) Whether to demand dissolution of the instant association

Since then, around November 4, 2014, Defendant B notified the Plaintiff of the termination of the instant partnership agreement, and thereafter, on March 18, 2015, Defendant B filed a lawsuit against the Plaintiff, etc. seeking the cancellation of the registration of transfer of ownership in the name of the Plaintiff on each of the instant land due to the instant sales contract and the cancellation of the instant partnership agreement, as seen earlier. As such, Defendant B’s notification of termination and the instant lawsuit are reasonable to interpret it as Defendant B’s claim for dissolution against the instant partnership.

(3) Whether there is an inevitable reason for requesting dissolution

In other words, the following circumstances revealed by the purport of the whole evidence and arguments, i.e., ① Defendant B did not timely invest or pay the investment amount of KRW 1.5 billion and subsidies agreed upon by the Plaintiff, and the Plaintiff’s failure to comply with the request of Defendant B to replace the project of this case from Defendant B to another construction company and to transfer the right to authorization and permission to the Plaintiff, etc., the dispute between the Plaintiff and the Defendant arises in the course of carrying out the project of this case on the ground that “the Plaintiff failed to comply with the request of Defendant B,” and eventually, it seems difficult to continue the project of this case upon cancellation of the construction permit of this case. ③ In full view of the following circumstances: (a) the Plaintiff asserted that the Plaintiff obtained money from Defendant C, the representative director of Defendant B, and filed a complaint against Defendant C, etc., the failure of trust between the Plaintiff and the Defendant, it is reasonable to deem that there is an inevitable reason to seek dissolution of the association

2) Whether it is possible to distribute the residual property of the instant association

A) Relevant legal principles

Where a partnership is dissolved, unless otherwise agreed by the parties, the remaining assets and the value of the residual assets to be distributed to the partnership members shall be determined at the time of the completion of the liquidation procedure. Therefore, in principle, a claim for distribution of the remaining assets may not be

Inasmuch as the collection of claims, repayment of obligations, etc. that have been jointly reverted to a cooperative is not completed, the collection of claims, and repayment of obligations, in principle, should be deemed to constitute a remaining business to be performed by the cooperative unless special circumstances are acknowledged that a fair distribution of residual assets is possible among the cooperative members even if the collection or repayment has not been completed, as long as all the cooperative members are jointly obligated to jointly collect claims or repay obligations, and in such a case, the remaining assets cannot be claimed immediately without undergoing the liquidation procedure. Furthermore, a claim for distribution of remaining assets that a cooperative must immediately take place without undergoing the liquidation procedure against another cooperative member is permitted only within the extent of the part exceeding the distribution ratio, and thus, a claim for distribution of remaining assets is possible to make such a claim through such distribution procedure only within the extent of the part exceeding the distribution ratio only where a cooperative member, who is the other party to the claim for distribution of remaining assets, holds the remaining assets in excess of the distribution ratio (see, e.g., Supreme Court Decision 2008Da3684, Apr. 26, 2008).

B) Determination

(1) Whether the liquidation procedure has been completed or it is not necessary to conduct the liquidation procedure

Comprehensively taking account of the aforementioned facts and circumstances, the Plaintiff and Defendant B did not follow the liquidation procedures of the instant association, and it cannot be deemed that the instant association remains distributing residual assets without any need to follow the liquidation procedures due to the lack of any remaining business of the association, such as debt collection and debt repayment, due to dissolution of the instant association. Moreover, even if the association’s remaining business was not completed, it does not seem that the special circumstance where it is possible to fairly distribute residual assets among the association members, even though the association’s remaining business was not completed.

As seen earlier, although the registration of ownership transfer has been completed in the name of the Plaintiff, each of the instant sites is deemed to have been jointly reverted to the instant association. As to each of the instant sites on December 17, 2014, the Plaintiff loaned KRW 2.5 billion under the name of both Jeju Livestock Industry Cooperatives (the maximum debt amount) with respect to each of the instant sites, 3.25 billion, the debtor, the mortgagee, the mortgagee, and the mortgagee, and 2.5 billion, with respect to each of the instant sites, and subsequently, repaid the existing provisional attachment and mortgage liability with respect to each of the instant sites, and thereafter, paid the amount equivalent to the interest on the said loans. Accordingly, the said obligations against the Yangju Livestock Industry Cooperatives (the instant site) with respect to each of the instant sites were jointly reverted to the instant association, and the relevant duties, such as repayment, were not completed.

Defendant B notified the Plaintiff of the termination of the instant partnership relationship around November 4, 2014, and the Plaintiff voluntarily asserted that the instant partnership was dissolved on or around April 4, 2014 or around April 13, 2015. As such, the Plaintiff and Defendant B should proceed to the settlement procedure following the dissolution of the instant association. However, the Plaintiff, as seen earlier after Defendant B’s notice of termination, received loans from both Jeju Livestock Industry Cooperatives and claimed the repayment of the existing partnership’s debts, and then, the Plaintiff asserted that the said repayment amount can be seen as the amount actually invested by the Plaintiff. In addition, each of the instant land was active acid of the instant association, but the Plaintiff brought a lawsuit against the Plaintiff for the cancellation of the instant provisional registration, and there was no specific dispute as to the Plaintiff’s right to claim reimbursement against the Plaintiff on the instant land after December 29, 2014.

○ The Plaintiff asserts that, even if the repayment of partnership obligations has not been completed, if the creditor is a partner, the person holding the assets of the company deducted the partnership obligations from the assets of the company to calculate the amount of the remaining assets to be distributed, and then refund the remaining assets to the other partners in proportion to the value of the investment of each partner among the remaining assets, and can distribute the remaining assets fairly in a simplified manner without undergoing separate liquidation procedures by performing the partnership obligations to the creditor members. However, the amount equivalent to the interest on loans that the Plaintiff pays to the Yangju Livestock Industry Cooperatives is also included in the amount equivalent to the expenses that the principal pays for the association of this case. Thus, the above legal principles of this case cannot be

The Plaintiff appears to be able to cause confusion between the amount invested in the instant partnership and the amount of claims against the instant partnership as a creditor, and Defendant B is disputing the content thereof. Therefore, it is necessary to go through a specific settlement procedure.

(2) Whether there exists a separate agreement and settlement agreement between the Plaintiff and the Defendant B regarding the liquidation procedures

(A) The Defendant B asserted that the method of settlement should be followed by the separate method of settlement following the dissolution of the instant association, and that the method of settlement should be prepared in preparation for the case where the instant project is not carried out, the Plaintiff should transfer the ownership of each of the instant land to the Defendant B, and the Defendant B shall return the money equivalent to the investment amount to the Plaintiff.

According to the statement No. 2-2 of the certificate of No. 2-2 of this case, it is recognized that the special contract of this case provides that "the purchaser will proceed with the construction of urban residential housing by drawing which was already permitted to the present land (paragraph 9), and that "if the purchaser fails to implement it (paragraph 11), this contract shall be invalidated (paragraph 11)." However, the above recognition alone is insufficient to deem that the plaintiff and the defendant Eul returned each of the land of this case to the defendant Eul, and that the defendant Eul returned the investment amount, etc. to the plaintiff, and there is no other evidence to acknowledge the settlement agreement asserted by the defendant B.

Therefore, Defendant B’s above assertion cannot be accepted.

(B) In addition, Defendant B proposed that the Plaintiff would be subject to liquidation procedures, such as paying the Plaintiff the obligations of the instant association through the auction procedure on each of the instant land during the proceeding of the instant lawsuit. However, as long as the instant association did not have any surplus, it appears in the record that it is reasonable that each of the instant land belongs to the Plaintiff, as long as the Plaintiff did not have any surplus, it is difficult to deem that there was an agreement on settlement between the Plaintiff and the Defendant B regarding

(C) Therefore, insofar as there is no separate settlement agreement between the Plaintiff and the Defendant B, it should undergo the liquidation procedure following the dissolution of the partnership under the Civil Act.

(3) Sub-determination

As seen earlier, the association of this case did not go through the liquidation procedures after dissolution, and does not constitute a case where the remaining property can be distributed without going through the liquidation procedures, and the plaintiff and the defendant Eul cannot claim the other party to distribute the remaining property. Thus, the existence and scope of the settlement amount to be settled according to the dissolution of the business partnership of this case cannot be determined. Accordingly, the plaintiff's claim for confirmation that there is no obligation to pay the settlement amount under the business partnership of this case against the defendant B is without merit.

3. Determination as to the Plaintiff’s claim against Defendant C

According to the above facts, Defendant C is obligated to pay damages equivalent to the same amount to the Plaintiff by deceiving the Plaintiff even though it did not intend to use the Plaintiff as design expenses, and by deceiving the Plaintiff by receiving KRW 20,000,000 from the Plaintiff around July 17, 2014. As to the damages amounting to KRW 20,000,000 from the date of tort, Defendant C is obligated to pay to the Plaintiff damages amounted to the Plaintiff at each rate of 5% per annum as stipulated in the Civil Act from July 18, 2014, which is the date of delivery of a copy of the application for change of the purport of the claim and the cause of the claim in this case, until August 17, 2017, and damages for delay calculated at 15% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment.

4. Conclusion

Thus, the plaintiff's claim against the defendant B is dismissed for the reason that it is reasonable, and the plaintiff's claim against the defendant C is justified.

Judges Kim Gin-young

Judges Thai-ho