2. The plaintiff's primary claim against the defendant 2 (the counter-party 1), the defendant 3, the defendant 4, and the defendant 5, and the defendant 2, the defendant 3, the defendant 4, and the defendant 5, the plaintiff's primary claim against the defendant 1, the defendant 2, the defendant 3, the defendant 4, and the defendant 5, and the third preliminary claim against the defendant 3 are all dismissed.

3. The defendant 2, the defendant 3, the defendant 4, and the defendant 5, which were added by this court, shall be dismissed as the second preliminary claim against the defendant 2, the defendant 3, the defendant 4, and the defendant 5.

4. Of the judgment of the first instance, the part against the defendant farming association corporation ordering the plaintiff to pay USD 92,159 in U.S. dollars and 6% per annum from April 1, 2013 to September 14, 2015, and 10% per annum from the next day to the date of full payment, to the plaintiff as to the wind of the defendant farming association corporation. The plaintiff's claim against the defendant farming association corporation corporation was revoked, and the part against the plaintiff as to the cancellation portion is dismissed.

5. The remaining appeal of the wind of the defendant farming association is dismissed.

6. The plaintiff bears 5% of the total costs of the lawsuit between the plaintiff and the defendant agricultural partnership wind, and 95% of the total costs of the lawsuit between the plaintiff and the defendant farming association wind, respectively, and the defendant 2, the defendant 3, the defendant 4 and the defendant 5 bears the total costs of the lawsuit between the plaintiff and the defendant non-party 1.

The Defendants jointly and severally pay to the Plaintiff 92,159 US dollars and 6% interest per annum from April 1, 2013 to the delivery date of a duplicate of the complaint of this case, and 15% interest per annum from the next day to the full payment date (the Plaintiff added the conjunctive claim to the Defendants other than the Defendant’s agricultural partnership wind, but the purport of the primary claim and the additional conjunctive claim is all the same).

【Purpose of Appeal】

The judgment of the first instance is revoked. All of the Plaintiff’s claims against the Defendants are dismissed.

(a) Status of a party;

(1) The Plaintiff is a legal entity incorporated under the law of California (hereinafter “U.S.”), California (hereinafter “U.S.”).

(2) The wind of the defendant farming association corporation (hereinafter "the defendant corporation") is the agricultural association corporation established under the Act on Fostering and Supporting Agricultural and Fisheries Business Entities (a short name: Agricultural and Fisheries Business Entities Act).

Defendant 3, Defendant 4, and Defendant 5 are members of the Defendant Corporation. Nonparty 1, who was the Defendant of the first instance trial, was the representative director of the Defendant Corporation. On April 25, 2016, which was after the judgment of the first instance was rendered, died on the part of the Defendant Corporation. Nonparty 2, who was the spouse, Nonparty 3, Defendant 2, and Nonparty 4 were the inheritor, and Nonparty 2, Nonparty 3, and Nonparty 4 renounced inheritance (hereinafter referred to as “the Defendants, a partner”).

B. Conclusion of the instant 1 and 2 contracts

(1) The Defendant Corporation: (a) promoted a development project for “○○○○○○○○○○○○○○○○○○○ (hereinafter “instant project”); (b) decided to build the instant instant transport in Gyeongbuk-gun, a separate resort for residence in the Republic of Korea (hereinafter “instant project”); and (c) concluded, on December 1, 201, “the instant primary contract” with the following main contents in California, with the intention to vicariously carry out sales and public relations activities for the sale and invitation of members of the instant transport; and (d) concluded, on December 1, 201, the instant primary contract with the following main contents in California (hereinafter “US currency”).

2.3. The price of the other transport membership in this case is three: $40,000: $30,000: $20,000: if the Plaintiff sells the other transport in this case, this amount shall be delivered to Maeb Edow (hereinafter referred to as Maedow). 4. The contract between the Plaintiff and the Defendant corporation shall be paid 5% to the Defendant corporation, and MaE shall be paid 15% of this amount to the Plaintiff, but the Plaintiff shall be paid 10% of this amount to Madow’s sales agent and public relations agent, and the Plaintiff shall be paid 15% of this amount to Madow’s sales agent’s sales agent and public relations agent’s sales agent’s sales of the other transport in this case.

(2) After the conclusion of the instant first contract, Nonparty 5’s former representative director of Defendant corporation embezzled the instant business-related funds and was dismissed on July 3, 2012, and Nonparty 1 was appointed as the representative director on the same day. Thereafter, the Plaintiff declared that the instant first contract would be terminated on the grounds that the Plaintiff could not trust the Defendant corporation. At the time, the Plaintiff declared that the instant contract would be terminated on the grounds that he could not be trusted. Until now, the Plaintiff’s publicity and sales was sold and the sales price was paid, but the sales price was fully refunded.

(3) However, on September 6, 2012, the Defendant Corporation promised to continue the instant business, paid USD 45,000 to the Plaintiff at the expense already paid by the Plaintiff under the instant first contract, and entered into the instant second contract with the Plaintiff on September 10, 2012 with the following major contents in California.

The title agreement included in the main text is newly prepared as the representative director of the defendant corporation was replaced, and the last contract is added. 1. The defendant corporation grants the right of sales agency and the right of publicity to the plaintiff on August 1, 2009. 2. The plaintiff will make every effort to sell and publicize the instant Trine. 3. The price of the instant Trine membership shall be newly determined and added. 85% of the membership fee paid by the plaintiff on September 29, 201, is the share of the defendant corporation and 15%. 7. Before the commencement of the new project and commencement of advertising activities, the defendant corporation shall pay to the plaintiff the balance of USD 137,159 already paid by the plaintiff on June 8, 201: The defendant corporation shall pay the remainder of USD 45,000 among the plaintiff's expenses to the plaintiff on June 29, 2012, the remaining amount of the defendant corporation shall be paid to the plaintiff on June 29, 2012.

(4) On August 28, 2014, the Plaintiff transferred the claim for the agreed amount against the Defendant Corporation under the instant secondary contract to Nonparty 6. Nonparty 6 filed a lawsuit against the Defendant Corporation, the deceased Nonparty 1, Defendant 3, Defendant 4, and Defendant 5 seeking the payment of the agreed amount under the instant secondary contract (Seoul District Court Decision 2014No35107, the Plaintiff’s legal representative at present was represented by Nonparty 6, and it is presumed that Nonparty 6 did not separately take over the claim against the Defendant Corporation from the Plaintiff, while claiming for the immediate performance of the claim against the Defendants, who are members of the Plaintiff. The above court dismissed the lawsuit on September 1, 2015 on the ground that the credit transfer constitutes a trust, and the judgment became final and conclusive around that time, the Plaintiff notified Nonparty 1 and Nonparty 6 of the claim transfer and takeover agreement to Nonparty 201, and notified Nonparty 26, etc. of the claim transfer and takeover agreement to Nonparty 26, 2015.

[Ground of recognition] Facts without dispute, Gap evidence 1-2, Gap evidence 2, 3, 4, Gap evidence 6-1, 2, Gap evidence 8-1, 2, Eul evidence 3, the purport of the whole pleadings, and the purport of the whole pleadings

2. The premise for determination

This case is about the second contract of this case entered into in California between the plaintiff and the defendant corporation incorporated under the laws of the State of California of the United States of America and the defendant corporation incorporated under the laws of the Republic of Korea, and the place where specific legal acts were or were expected to have been performed is California. Thus, it is about the legal relationship with foreign elements. Accordingly, the governing law under the private international law is first determined under the private international law, and the propriety of the plaintiff'

The plaintiff asserted that the law of the Republic of Korea is the governing law, and the defendants asserted that California law is the governing law.

3. Determination as to the claim against the defendant corporation

(a) Applicable law;

Article 25 of the Private International Act provides that the law applicable to the contract relationship shall be governed by the law that the parties have chosen explicitly or implicitly. According to the second contract of this case, the plaintiff and the defendant corporation agreed to the law applicable to the second contract of this case as California law. Thus, California law is the law applicable to the second contract of this case.

In the instant lawsuit, the Plaintiff asserts to the effect that a new agreement between the Plaintiff and the Defendant Corporation under the law of the Republic of Korea was reached. The Plaintiff asserted that the governing law was the law of the Republic of Korea in the instant lawsuit, and the Defendant Corporation did not make any assertion as to the governing law until the instant court explained the necessity for confirmation of the governing law through guidance on the trial procedure on November 1, 2016. However, the foregoing circumstance alone is difficult to recognize that the Plaintiff and the Defendant Corporation subsequently made an implied agreement under the law of the Republic of Korea regarding the governing law of the instant secondary contract by modifying the explicit agreement regarding the governing law of the instant lawsuit, and there is no evidence to support that there was an agreement between the Plaintiff and the Defendant Corporation under the law of the Republic of Korea on the governing law of the Republic of Korea, or that there was a right to

B. Determination on the cause of the claim

(1) According to the facts based on the facts, the Defendant corporation is obligated to pay to the Plaintiff the agreed amount of USD 92,159 under the instant secondary contract and delay damages from April 1, 2013, which is the day following the final payment date.

(2) The damages for delay are damages for delay of the obligation, which are paid along with the original obligation. Thus, it should be determined by the governing law governing the original obligation, and according to Article 3289 of the California Civil Code, the rate of damages for delay is 10% per annum.

Meanwhile, even though Article 3(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings applies to legal interest rates stipulated in Article 3(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, it cannot be deemed that the said provision applies to the relief of rights by litigation procedures for the purpose of facilitating legal proceedings, and its substance is to determine the scope of compensation for damages caused by the nonperformance of monetary obligations. Therefore, it is reasonable to interpret that the governing law of the original obligation cannot be applied to a foreign corporation (see Supreme Court Decision 2009Da7754, Oct. 25

C. Determination as to the assertion by the defendant corporation

(1) Summary of the argument

(A) Errors or deceptions

Although the Defendant Corporation concluded the second contract with the belief that the Plaintiff would resume the publicity of the instant business, the Plaintiff did not resume the publicity of the instant business (it is interpreted to the effect that the second contract of this case was revoked due to the deception of the Plaintiff or the mistake of the Defendant Corporation).

(b) argument of suspension or prior performance;

In accordance with the second contract of this case, the obligation to pay the agreed amount of the defendant corporation under the second contract of this case is a condition suspending the plaintiff's business of this case, but the conditions of suspension have not been fulfilled. In addition, prior to the performance of the obligation to pay the agreed amount under the second contract of this case, the plaintiff's obligation to resume the business of this case should first be fulfilled, but the plaintiff did not

(2) Determination

(A) Determination of errors or deceptions

The testimony of Non-Party 7 alone is insufficient to recognize the fact that the plaintiff deceivings the defendant corporation or omitted the defendant corporation in mistake as to whether the business of this case is resumed or not with the testimony of Non-Party 1 and Non-Party 7 of the first instance trial witness, and there is no other evidence to prove it. Thus, this part of the argument of the defendant corporation is without merit without examining

(B) Determination as to the claim of suspension or advance performance

The aforementioned evidence alone is insufficient to acknowledge the fact that the Plaintiff and the Defendant Corporation agreed that the obligation to pay the agreed amount under the second contract of the Defendant Corporation would take place on the condition of suspending the Plaintiff’s business publicity of the instant case. However, it is insufficient to acknowledge the fact that the Plaintiff agreed to resume the business publicity of the instant case before the Defendant Corporation pays the agreed amount, and there is no other evidence to acknowledge

Rather, in full view of the developments leading up to the conclusion of the instant 1 and 2 contracts and the text and text of the instant 2 contracts (Paragraph 7, prior to commencing advertising activities as a new project, the Defendant Corporation shall pay the Plaintiff USD 137,159 that was already incurred by the Plaintiff for advertising prior to the commencement of the project), and Paragraph 8, “The remaining $92,159 shall be paid up until March 31, 2013, even if the project was canceled or delayed, until March 31, 2013,” etc., the agreed amount sought by the Plaintiff is deemed to have the nature of the consideration for publicity that the Plaintiff had already paid by the Plaintiff until the time of the commencement of the promotion of the instant project. Therefore, this part of the Defendant Corporation’s assertion is without merit.

D. Sub-committee

Therefore, the Defendant corporation is obligated to pay to the Plaintiff the amount of USD 92,159 with the agreed amount under the instant secondary contract and the amount of damages for delay calculated at the rate of KRW 6% per annum pursuant to the Plaintiff’s claim and KRW 10% per annum from April 1, 2013 to September 14, 2015, which is the day following the date of service of a copy of the instant complaint from April 1, 2013 to September 14, 2015 (the Plaintiff’s claim seeking damages for delay calculated at the rate of KRW 15% per annum from the next day to the day of full payment).

4. Determination as to the claim against the Defendants, who are members of the association

A. Summary of the cause of the Plaintiff’s claim

(1) The primary cause of the claim

According to Article 16(7) of the former Agricultural and Fisheries Business Entities Act (amended by Act No. 12961, Jan. 6, 2015; hereinafter “former Agricultural and Fisheries Business Entities Act”), the provisions concerning partnerships under the Civil Act shall apply mutatis mutandis to agricultural and fisheries enterprises except as otherwise provided for in the Agricultural and Fisheries Business Entities Act. According to Article 57(1) of the Commercial Act, several persons are jointly and severally liable for performance in cases where they bear obligations to one or all persons on account of an act that is a commercial activity.

Since the obligation to pay the agreed amount under the instant second contract to the Plaintiff by the Defendant Corporation is borne by the act of commercial activity for all the members, the Defendants, the members of the Plaintiff, are jointly and severally liable to pay the agreed amount under the instant second contract to the Plaintiff.

(2) First preliminary claim

There exists a separate partnership agreement between the defendant corporation and the defendants who are members of the association, and the business of this case is in accordance with the above separate partnership agreement, so the defendants, members of the association, are jointly and severally liable to pay the contract amount under the second agreement to the plaintiff.

(3) Second preliminary claims

The Defendants, a partner, did not comply with the agreement to contribute real estate to the Defendant corporation. Therefore, the Plaintiff sought monetary payment within the value of real estate that the Defendants, a partner, agreed on behalf of the Defendant corporation.

(4) 3 preliminary claims (limited to Defendant 3)

Since Defendant 3 concurrently assumed the contractual obligation under the instant secondary contract against the Plaintiff by Defendant 3, Defendant 3 is jointly and severally liable to pay the agreed amount to the Plaintiff with the Defendant corporation.

B. Judgment on the main claim

(1) Applicable law

(A) A claim asserted by the Plaintiff as the primary claim is not a claim arising from an office management, unjust enrichment, or tort stipulated in the Private International Act, but a statutory claim is the same as a claim arising from the above office management (which is not a claim based on a contract between the Plaintiff and the Defendants, who are members of the association). Therefore, the provisions of the Private International Act

According to Article 30(1) of the Private International Act, business management is governed by the law of the place where the management was performed, and according to Article 31, unjust enrichment is governed by the law of the place where the profit was generated, and according to Article 32(1), tort is governed by the law of the place where the act was performed.

Since the claim asserted by the plaintiff as the primary claim is based on the instant secondary contract concluded in California between the plaintiff and the defendant corporation, the governing law of the primary claim may be recognized as California law if it is applied mutatis mutandis to the above provisions of the private international law.

(B) In the instant lawsuit, the Plaintiff asserted that an agreement was reached between the Plaintiff and the Defendants, who are members, on the law of the Republic of Korea as the governing law.

According to Article 33 of the Private International Act, notwithstanding the provisions of Articles 30 through 32, the parties can choose the law of the Republic of Korea as the applicable law by agreement after the occurrence of administrative management, unjust enrichment and illegal act.

In the instant lawsuit, the Plaintiff asserted that the governing law is the law of the Republic of Korea, and the Defendants, a member of the Plaintiff, did not assert any assertion as to the governing law until the court explained the necessity of confirmation of the governing law through the guidance of the trial procedure on November 1, 2016. However, such circumstance alone is difficult to recognize that the Plaintiff and the Defendants, a member of the Plaintiff and the Defendants, were ex post facto at an implied agreement between the Republic of Korea and the Defendants, whose governing law was the law of the Republic of Korea, or there is no other evidence to support that there was an agreement between the Plaintiff and the Defendants, a member of the Defendants, the governing law of the Republic of Korea, or that there was a right to agree on the governing law of the Defendants’ legal representative (as indicated in the basic facts, in the Incheon District Court case where the Plaintiff’s legal representative at present represented by Nonparty 6, the Plaintiff’s legal representative at the Incheon District Court case where the Plaintiff’s lawsuit was filed, and Nonparty 6 did not take over only the agreed amount claims against the Defendant corporation under the second contract, and did not take over the claims against Nonparty 1.

(2) Determination as to the existence of the Plaintiff’s claim

(A) The foreign law as the governing law is not a fact, but a court as the governing law should investigate the contents thereof ex officio, and the cooking, etc. shall be applied only when it is impossible to confirm the contents of the foreign law despite such ex officio investigation (see Supreme Court Decision 2008Da88375, Mar. 25, 2010, etc.).

(B) Although this Court explained the necessity of confirming the governing law through the instruction of the trial procedure on November 1, 2016, the Plaintiff and the Defendant did not submit the materials concerning the California law related to the primary claim, and thus, it cannot be confirmed that California law related to the primary claim is the content of the California law, and thus, it is determined by applying the cooking, etc.

As a general legal principle to separate a corporation and its members’ liability, it is difficult to recognize that the Defendants, a partner, should jointly and severally perform the obligations under the second contract with the Defendant, barring special circumstances when cooking, etc.

Therefore, the primary claim against the Defendants, a member of the Plaintiff, is without merit.

C. Judgment on the first preliminary claim

(1) Applicable law

The claim asserted by the plaintiff as the first preliminary claim is not based on a contract between the plaintiff and the defendants who are union members, and on the same ground, California law can be recognized as the governing law.

(2) Determination as to the existence of the Plaintiff’s claim

The evidence submitted by the plaintiff alone is insufficient to recognize the fact that a separate partnership contract has been concluded between the defendant union and the defendants who are union members, and there is no other evidence to acknowledge it.

Therefore, without examining the content of California law on the same trade contract, the first preliminary claim against the Defendants, a partner of the Plaintiff, is without merit.

D. Judgment on the second preliminary claim

(1) The governing law on the legal requirements of the lawsuit

Since it is the general principle established internationally to apply the law of suspension with respect to the legal requirements of lawsuits, the Korean law is the governing law of the forum corporation.

(2) Determination as to the lawfulness of a lawsuit

According to the Civil Code of the Republic of Korea, in cases where the obligee’s right to the obligor, which is to be preserved by subrogation, is a monetary claim, the obligee’s right to the third obligor on behalf of the obligor only when the obligor is insolvent (see, e.g., Supreme Court Decision 2012Da73646, Mar. 26, 2015).

Inasmuch as there is no evidence to prove the fact that the Defendant is insolvent, the Plaintiff’s lawsuit of the second preliminary claim is unlawful (in addition, even with respect to the existence of the subrogated right, it is insufficient to acknowledge the fact that the Defendants, a member of the Defendant, agreed to contribute real estate to the Defendant corporation, and there is no other evidence to acknowledge it).

E. Judgment on the third preliminary claim

(1) Applicable law

According to Article 34(1) of the Private International Act, the legal relations between the transferor and the transferee of a claim shall be governed by the law applicable to the contract between the parties: Provided, That the possibility of transferring a claim, the effect of transferring a claim to the obligor and a third party shall be based on the law applicable to the claim to be transferred, and the provisions of paragraph (1) shall apply mutatis mutandis to the assumption of

Therefore, the legal relationship between the defendant corporation and the defendant 3 shall be governed by the law of the Republic of Korea, and the validity of the assumption of obligation to the plaintiff who is the creditor shall be governed by the law of California, which is the governing law of the plaintiff'

(2) Determination as to the existence of the Plaintiff’s claim

The statement in Gap evidence No. 11 alone is insufficient to recognize the fact that defendant 3 concurrently acquired the obligation to pay the contract amount under the second contract of this case against the plaintiff of the defendant corporation, and there is no other evidence to acknowledge it.

Therefore, without examining the content of California law on the assumption of obligation, the third preliminary claim against Defendant 3 is without merit.

(f) Other:

In June 8, 2017, the issues described in Section 1(c), (d), and (e) of the trial procedure guidance of June 8, 2017 are not separately determined.

5. Conclusion

The plaintiff's claim against the defendant corporation is justified within the scope of the above recognition, and the remaining claims shall be dismissed without any justifiable reasons. The plaintiff's main claim against the defendants who are members of this court, and the 1st preliminary claim against the defendants who are members of this court, and the 3nd preliminary claim against the defendant 3, shall be dismissed as there is no justifiable reason. The second preliminary claim against the defendants who are members of this court shall be dismissed as it is unlawful.

In the judgment of the court of first instance, the part against the Defendants, a partner, is unfair. Accordingly, the plaintiff's main claim against the Defendants, a partner of the court, and the first preliminary claim against the Defendants, a partner of the court, and the third preliminary claim against the Defendants, which were added by this court, shall be dismissed. The second preliminary claim against the Defendants, a partner of the court added by this court, shall be dismissed. The part against the defendant corporation ordering payment in excess of the above recognized money among the judgment of the court of first instance (the part accepting the plaintiff's claim) which partially different conclusions, is unfair, and thus, the plaintiff's claim against the defendant corporation as to the revoked part is dismissed, and the remaining

It is so decided as per Disposition for the same reasons above.

Judges Man-gu (Presiding Judge) Yang-hunon Park Don-hee