부당이득금
1. The plaintiff's appeal is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
The purport of the claim and appeal is the purport of the appeal.
1. Case issues and citing the judgment of the court of first instance
A. The key issue of the instant case is whether the Plaintiff paid to the Defendant advance payment of KRW 20 million according to the soil and sand gathering agreement concluded around May 2012.
B. As to this, the first instance court determined that it is difficult to view that the Plaintiff paid KRW 20 million to the Defendant with regard to the above earth and sand gathering contract. According to the records of this case and the purport of the whole arguments at the trial court, the above determination at the first instance court is justifiable.
C. Meanwhile, in the first instance court, the Plaintiff asserted that D is merely an assistant of the Plaintiff (the preparatory document dated November 30, 2016), but the Plaintiff was in the same business relationship with D, and that even if D paid KRW 20 million to the Defendant under the name of ASEAN, D would not be different from its payment.
The partnership relationship asserted by the Plaintiff is a partnership relationship under the Civil Act. This is a contract under which two or more persons agree to jointly invest and operate a business. Since the partnership property belongs to partnership property, barring any special circumstance, a lawsuit on a claim belonging to partnership property constitutes an essential co-litigation to be filed jointly by partners, barring any special circumstance.
(See Supreme Court Decision 2012Da4471 Decided November 29, 2012, etc.). Meanwhile, Article 271(1) of the Civil Act provides that “When several persons according to the provisions of law or a contract possess an object as a partnership, they shall belong to the partnership.” Article 271(1) of the Civil Act provides that “The right of the partnership-ownership shall extend to the whole of the partnership-ownership.” Article 278 of the Civil Act provides that “The said provision shall apply mutatis mutandis to property rights other than ownership.” Article 704 of the Civil Act provides that “The contribution or other property of a partner shall be the partnership-ownership
In light of the above legal principles and legal provisions, a partnership agreement between the Plaintiff and D to collect earth and sand constitutes a partnership agreement under the Civil Act.