[2] The case holding that the requirements for establishment of a cooperative were not satisfied because it is merely a group to achieve the common purpose of leasing and managing a site and store, which is a public property

1. Judgment on the plaintiffs' grounds of appeal

A. As to the ground of appeal on the part on Defendant 2

The partnership agreement under the Civil Act is a contract under which two or more persons agree to jointly operate a business by mutual investment (Article 703 of the Civil Act). It can be deemed as a partnership agreement only for an agreement to jointly operate a specific business, and the degree of the achievement of common objectives does not meet the requirements for establishment of a partnership (see Supreme Court Decisions 2003Da60778, Apr. 9, 2004; 2003Da18876, Nov. 10, 2005, etc.).

Examining the reasoning of the judgment below in light of the records, it is acknowledged that 28 co-owners of Daegu Jung-gu, Daegu-gu, 94.2m2m2 (28.5m2; hereinafter “the instant site”) created temporary stores on the ground of the instant site (hereinafter “instant store”) and some co-owners directly lease out to others and use them as a street store with Kim(b) rice, rice, clothing, etc., for the purpose of profit and management of the instant site and store. Since around 1981, some co-owners appointed a manager of co-ownership in the name of a majority of co-ownership to enter into a lease contract with the tenant and receive monthly rent in the name of the tenant. The fact that the co-owners of the instant site changed the status of co-ownership members if the co-ownership share was transferred or acquired, and thus, they could have received dividends according to the share ratio, and therefore, it is difficult to view it as satisfying the requirements for the establishment and management of the instant joint ownership association, rather than establishing a joint ownership association.

Under the above premise, the court below acknowledged that Defendant 2 was appointed as the manager of the store of this case on August 31, 1996, but immediately resigned and was not involved in the lease and the distribution of the store of this case, and Defendant 1 was in full charge of this, and rejected the plaintiffs' dividends or the claim for damages corresponding thereto. In light of the records, the decision of the court below is just and acceptable, and the decision of the court below contains the purport of excluding all the claims for damages due to default liability or employer liability. Thus, the court below did not err in the misapprehension of the rules of evidence, misconception of facts, incomplete hearing, omission of judgment, lack of reasoning, or misapprehension of legal principles as asserted in the ground of appeal.

All of the arguments in the grounds of appeal regarding this cannot be accepted.

B. As to the ground of appeal on the part on Defendant 1

The cooking of evidence and the acknowledgement of facts are all the exclusive authority of the fact-finding court, and this is not a legitimate ground for appeal unless it exceeds the bounds of the principle of free evaluation of evidence (see, e.g., Supreme Court Decisions 2001Da33048, Aug. 24, 2001; 2003Da61689, Jul. 15, 2005; 2005Da77848, May 25, 2006).

Based on its adopted evidence, the court below rejected the claim for the dividend after June 2001 and the damages for delay exceeding 5% per annum as stipulated in the Civil Act, since June 2001, when Defendant 1 managed the store of this case, after deducting the amount recognized as management expenses by a majority of co-ownership, etc., and then setting the share to be distributed according to the share ratio of the plaintiffs after deducting the amount recognized as management expenses from the amount repaid by Defendant 1 to the plaintiffs, and on the other hand, determined that Defendant 1 was liable to pay each of the amount repaid by Defendant 1 to the plaintiffs as repayment deposit, and there is no evidence to prove that Defendant 1 managed the store of this case after June 2001, and that there was no evidence to prove that there was no profit equivalent to the interest rate, and that there was no evidence to prove that Defendant 1 obtained the profit equivalent to the interest rate due to the fixed deposit. In light of the above legal principles and records, the court below's finding of evidence and fact is justified, and there is no violation of law such as misconception of facts, incomplete or misapprehension of legal principles as alleged in the grounds for appeal.

All of the arguments in the grounds of appeal regarding this cannot be accepted.

2. Determination on Defendant 1’s grounds of appeal

A. In light of the above legal principles and records, we affirm the decision of the court below that Defendant 1 is liable to pay each amount to the plaintiffs for the above reasons, and there is no violation of the rules of evidence, misconception of facts, or misapprehension of legal principles as alleged in the grounds of appeal.

B. Furthermore, the court below held that Defendant 1 did not apply the short-term extinctive prescription period of 1 year or 3 years to the damages for delay on the dividends that Defendant 1 shall pay to the plaintiffs, and that there is no ground for set-off or mutual-aid claim against the plaintiff 8 et al., as to the security deposit to be returned to other co-owners of the store of this case or the unpaid monthly rent of the plaintiff 9, etc., and there is no reason to claim payment, and even if there is no evidence to acknowledge the payment delay of the plaintiffs' dividends, it is difficult to deem that the claim of the plaintiffs was invalidated or the exercise of the claim constitutes an abuse of rights or the cause of expansion of damages by the plaintiffs. In light of the relevant legal principles and records, the judgment of the court below is just and there is no error of law as alleged in

All of the grounds of appeal cannot be accepted.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)