투자금 등 반환 청구의 소
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
1. Facts of recognition;
A. On August 19, 2015, the Plaintiff and the Defendant purchased B (former C; hereinafter referred to as the “instant vessel”) jointly on and around August 19, 2015, the Plaintiff is responsible for driving, and the Defendant is responsible for operating, and entered into a partnership agreement (hereinafter referred to as the “instant partnership agreement”). The main contents of the instant partnership agreement are as shown in attached Table 1.
B. The Plaintiff and the Defendant initially agreed to invest KRW 50 million in the purchase fund of the instant vessel in Section 2-1(b) and Section 1-1(b) of the instant agreement. The Plaintiff and the Defendant agreed to borrow KRW 81 million as collateral and invest the instant vessel in the instant agreement.
Since then, the plaintiff and the defendant changed to make an additional investment of KRW 50 million with the purchase fund of the ship of this case. Accordingly, the plaintiff and the defendant make an investment of KRW 50 million with the plaintiff and the defendant, and the defendant received a loan of KRW 81 million.
C. Around June 25, 2016, the Plaintiff was found to have driven the instant vessel, and the Defendant notified the Plaintiff of the termination of the instant club agreement pursuant to Section 2-1(c) of the instant club agreement, around June 27, 2016. [In the absence of any dispute over grounds for recognition, the respective entries in subparagraphs A2 and 3, and the purport of the entire pleadings.]
2. The parties' assertion
A. The Plaintiff’s instant partnership agreement is a type of partnership agreement, but is an investment agreement in substance.
When the Dong business contract of this case is terminated, the plaintiff can recover the investment amount, and if there is a benefit therefrom, 50% of the net profit can be collected according to the profit payment agreement for the investment amount.
Even if the defendant suffered loss as alleged by the defendant, the plaintiff does not have a duty to share the loss, and thus only the amount of KRW 50 million is returned.
Even if the Plaintiff is liable to share losses, the Defendant is also obligated to purchase, repair, and manage the instant vessel in accordance with the instant business agreement. The Defendant is also obligated to pay KRW 50 million for vessel purchase and KRW 81 million for bank loans.