In a case where the co-owners have agreed to pay the fraternity to the other co-owners on the part of the other co-owners on the part of the co-owners and deliver it to the other co-owners on the part of the other co-owners, the content of the right to claim the payment of the fraternity between the co-owners and the burden of proving the fulfillment thereof.

If the co-owners have attempted to pay the fraternity to each of the other co-owners under their own responsibility, and the other co-owners have agreed to pay the fraternity to the other co-owners once and deliver it to the other co-owners, the co-owners shall be deemed to have established the obligation to pay the fraternity which they attempted to pay to the other co-owners. Thus, each co-owner may directly claim the other co-owners for the payment of the fraternity which he attempted to pay to the other co-owners, and shall not claim the other co-owners for the payment of the fraternity which he attempted to pay to the other co-owners. In this case, the burden of proof on the fulfillment of the obligation shall be borne by the other co-owners.

Article 703 of the Civil Act, Article 261 of the Civil Procedure Act

Plaintiff

Defendant

Seoul High Court Decision 83Na3589 delivered on May 2, 1984

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the Plaintiff’s ground of appeal.

1. The reasoning of the judgment below is as follows.

In other words, the plaintiff is jointly owned by the defendant and organized the 24 unit numbers of 1,00,000 won for the 15 unit units. With respect to the remaining 15 unit units, the plaintiff agreed to collect the fraternity amount by recruiting the fraternity members under his own responsibility. The defendant did not receive the fraternity amount from the defendant's fraternity members on November 23, 199, which is the cause of the plaintiff's side, while he did not pay it to the plaintiff, and the plaintiff did not pay it to the plaintiff, and therefore the plaintiff requested the defendant to pay the above amount. However, the plaintiff's assertion that the plaintiff paid the fraternity amount of 3,300,000 won for the total sum of the fraternity amounts of 3,300,000 won for the plaintiff's side members without any clear evidence to support the plaintiff's assertion that the plaintiff paid the fraternity amount.

2. However, in a case where the plaintiff and the defendant, as joint owners, have collected the fraternity payments of the fraternitys collected by each of them under their own responsibility, and if they have agreed to pay the fraternitys to the other party owners once again, they shall be paid to the other party owners, the joint owners of the joint owners shall be deemed to have the obligation to pay the fraternitys collected by each of the above to the other party owners. Thus, the plaintiff may directly claim the payment of the fraternitys collected by his own fraternitys to the defendant against his own fraternitys once, and shall not claim the payment of the fraternitys collected by his own fraternitys to his own fraternitys only after he paid the fraternitys to his own fraternitys. In this case, the burden of proof on the fulfillment of such obligation shall be borne by the defendant on the part of the defendant who bears the obligation to pay the fraternitys.

According to the records, although the plaintiff's claim of this lawsuit is defined as a claim for indemnity, it is the purport of claiming that the defendant pay the amount collected from the defendant's fraternity in accordance with the agreement between the joint owners as above, to the plaintiff. Thus, the defendant does not clearly argue that the defendant is liable to collect the amount of the fraternity from the defendant's fraternity and pay it to the plaintiff, but it is obvious in the records that all of them were paid to the plaintiff. Thus, it is obvious that the defendant bears the burden of proving the payment.

Nevertheless, the court below rejected the plaintiff's claim for payment on the ground that the plaintiff did not have any evidence that the plaintiff paid the fraternity to his own fraternity. This constitutes a ground for reversal under Article 12 (2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, since the court erred by misapprehending the content of the obligation and obligation pursuant to the above payment agreement, or by disregarding the burden of proof for its implementation, which affected the conclusion of the judgment.

3. Ultimately, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Lee Sung-soo (Presiding Justice)