(영문) 서울고등법원 2020.04.22 2019나2037357

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글꼴

크기(pt)

굵기

줄 간격

자간(%)

(영문) 서울고등법원 2020.04.22 2019나2037357

수익금 청구

Text

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

Purport of claim and appeal

1..

Reasons

1. The grounds for appeal by the defendant citing the judgment of the court of first instance are as follows.

2. Except for paragraphs (A) and (4), the judgment of the first instance court that accepted the Plaintiff’s claim is not significantly different from the allegations in the first instance court, and even if the evidence and the result of the pleading submitted in the trial were neglected, the judgment of the first instance court that accepted the Plaintiff’s

Therefore, this court's reasoning, including the allegations of the parties added in the trial, shall be cited by the main sentence of Article 420 of the Civil Procedure Act, as it is stated in the reasoning of the judgment of the court of first instance, except for further determination by supplementing the reasoning of the judgment of the court of first instance as stated below,

2. Additional determination

A. Defendant’s assertion 1) In the interpretation of the instant investment contract, the Plaintiff is not a mere investor, but a joint business operator and a joint business operator of the instant business, and such interpretation constitutes an anonymous association under the Commercial Act. The Plaintiff’s revenue under the instant investment contract is 40% of the business revenue under the instant investment contract. Article 5(2) of the instant investment contract merely guarantees the Plaintiff to recover the principal amount of investment in preparation for the case where the final revenue falls short of the Plaintiff’s investment, and cannot be interpreted to pay 10% of the investment amount as the profit. (2) According to the interpretation of Articles 5(2) and 8(1) of the instant investment contract, the time when the Defendant is liable to pay the profit shall be deemed to be the time when the actual business is completed and the settlement is completed, and it shall not be deemed to be the expiration date of the trust contract.

Since the settlement of the instant project was not completed, the period during which the Plaintiff’s claim against the Defendant was due has not yet arrived.

3. The Plaintiff, as a joint executor of the instant project, has a duty to cooperate in the smooth implementation of the instant project.

참조조문

-민사소송법 제420조

-상법

유사 판례

-서울중앙지방법원 2020.05.25 2019가단5158860

-광주지방법원 순천지원 2018.06.14 2017가단7969

-서울중앙지방법원 2019.10.18 2018가합526451

-서울고등법원 2012.08.23 2012나1247

-서울고등법원 2015.03.12 2014나41997