Plaintiff (Counter-Defendant) 1 (Law Firm Lee & Lee, Attorneys Park Jong-ap et al., Counsel for plaintiff-appellant)

Defendant Counterclaim Plaintiff and one other (Law Firm Barun Law, Attorneys Kim Jong-soo, Counsel for the plaintiff-appellant)

December 14, 2018

Seoul Central District Court Decision 2016Gahap531046, 2018Gahap502752 decided June 8, 2018

1. The part of the judgment of the court of first instance against the Plaintiff (Counterclaim Defendant) 1 among the claims filed by the Plaintiff (Counterclaim Plaintiff) 1 against the Defendant (Counterclaim Plaintiff) is revoked, which corresponds to the amount ordered to be paid below.

The Defendant-Counterclaim Plaintiff (Counterclaim Plaintiff) pays 142,585,890 won to Plaintiff-Counterclaim Defendant 1 and 100,000,000 won per annum from June 10, 2016; 42,585,890 won per annum from December 16, 2017 to January 11, 2019; and 15% per annum from the following day to the date of full payment.

2. The remainder of the appeal against the Plaintiff (Counterclaim Defendant) 1 and the appeal against the Plaintiff (Counterclaim Defendant) 2 and the counterclaim against the Defendant (Counterclaim Plaintiff) are all dismissed.

3. A. A. Of the total cost of the lawsuit against the principal lawsuit incurred between the Plaintiff (Counterclaim Defendant) 1 and the Defendant (Counterclaim Plaintiff), 60% of the total cost of the lawsuit against the principal lawsuit shall be borne by the Plaintiff (Counterclaim Defendant) 1, the remainder of 40% by the Defendant (Counterclaim Plaintiff) 1, and the costs of the appeal against the principal lawsuit incurred between the Plaintiff (Counterclaim Defendant) 1 and the Defendant (Counterclaim Plaintiff) 2 shall be borne by the Plaintiff (Counterclaim Defendant) 1

B. The costs of appeal against the principal lawsuit by the Plaintiff (Counterclaim Defendant) are borne by the Plaintiff (Counterclaim Defendant) 2, and the costs of appeal against the counterclaim are borne by the Defendant (Counterclaim Plaintiff).

4. The part concerning the payment of money under paragraph (1) may be provisionally executed.

1. Purport of claim

(a) Main claim;

(1) The primary purport of the claim

The Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) 1: (a) with respect to KRW 489,313,453 among the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) and KRW 167,315,205 from July 28, 2015; (b) with respect to KRW 321,98,248 from September 19, 2015 to the date of delivery of a duplicate of the complaint of this case; (c) with respect to KRW 335,690,686 from the following day to the date of full payment; (a) with respect to KRW 62,315,205 from the date of full payment; and (d) with respect to KRW 335,69,686 to Plaintiff 2,62,315,205 from the date of full payment; and (e) with respect to KRW 167,375,481 from the date of full payment until September 15, 2015 to the following day of full payment.

(2) Claim of the preliminary claim

(A) Defendant 1 pays 167,315,205 won to Plaintiff 1, and 62,315,205 won to Plaintiff 2, and 15% interest per annum from July 28, 2015 to the service date of a duplicate of the main complaint of this case, and 6% per annum from the next day to the day of full payment.

(B) Defendant 2 shall pay to Plaintiff 1 266,787,278, and to Plaintiff 2 218,164,511 and each of the above amounts at the rate of 6% per annum from September 19, 2015 to the service date of a duplicate of the main complaint of this case, and 15% per annum from the next day to the day of full payment.

(b) Counterclaim;

(1) Plaintiff 1 pays to Defendant 1 70,00,000 won with the interest of 6% per annum from July 28, 2015 to the service date of the duplicate of the counterclaim of this case, and 15% per annum from the next day to the day of complete payment, and (b) to Defendant 2 with the interest of 200,000,000 won per annum from September 19, 2015 to the service date of the duplicate of the counterclaim of this case, and the interest of 15% per annum from the next day to the day of complete payment.

(2) Plaintiff 2 pays to Defendant 1 1 6% a year from July 28, 2015 to the service date of a duplicate of the instant counterclaim, and 15% a year from the following day to the day of complete payment, and (b) to Defendant 2 2 6% a year from September 19, 2015 to the service date of a duplicate of the instant counterclaim, and 15% a year from the following day to the day of complete payment.

2. Purport of appeal

A. The plaintiffs: The part of the judgment of the court of first instance against the principal lawsuit shall be revoked. The same shall apply to the purport of the claim in the principal lawsuit.

B. The Defendants: The part of the judgment of the first instance against the counterclaim shall be revoked. The same shall apply to the description of the purport of the counterclaim.

1. Basic facts

A. Conclusion, etc. of a trade agreement related to “○○○○○” business

(1) Around 2012, Plaintiff 2, Defendant 1, and Nonparty 1 agreed to operate a business (hereinafter “instant first business”) of constructing and selling a building (the name of the building “○○○○○○○,” the size of 9 stories and 74 households from the underground floor; hereinafter “instant 1”) on the ground of 602.5 square meters wide from the Manan-gu, Ansan-si ( Address omitted) in Ansan-si (hereinafter “the instant 1 business”). At the time of the said agreement, the share in the instant 1 business was determined as Defendant 150%, Plaintiff 225%, and Nonparty 125% (hereinafter “instant 1 business business agreement”).

(2) On September 20, 2012, Plaintiff 2, Defendant 1, and Nonparty 1 concluded a construction contract on the instant building No. 1 with Alley integrated Construction Co., Ltd. (hereinafter “Co., Ltd.”) on September 20, 2012. After that, the construction work was changed to an urban area and the city was completed the new construction work on the instant building No. 1.

(3) On March 3, 2014, Nonparty 1 transferred 25% of its shares under the instant business partnership agreement to Nonparty 2.

(4) On May 15, 2014, Defendants 1, 2, and 1, 1, and 1, and 1, and 2, the United States of America completed the registration of initial ownership relating to the building of this case (shares 45/10, shares 25/210, shares 25/100, shares 25/100, and shares 5/100 of the city).

On May 15, 2014, Nonparty 1 completed the registration of ownership transfer for Nonparty 2’s shares on the grounds of sale on May 14, 2014, and on May 15, 2014, Nonparty 1 completed the registration of ownership transfer for Nonparty 2’s shares on the grounds of sale on May 14, 2014. On May 15, 2014, Defendant 1 had completed the registration of ownership transfer for Defendant 1’s shares on the grounds of sale on May 14, 2014, and Plaintiff 2 completed the registration of ownership transfer for the said shares on May 6, 2015 on the grounds of sale on April 28, 2015.

(5) On April 30, 2016, Nonparty 2 transferred Nonparty 1’s right to claim settlement under the instant first business agreement against Defendant 1 to Nonparty 2, and notified Defendant 1 of the assignment of the said claim.

B. Conclusion, etc. of a trade agreement related to the “○○ ○○” business

(1) On March 28, 2013, the plaintiffs and defendant 1 agreed to operate the business (hereinafter "the second business of this case" of this case) newly constructing and selling the buildings on the ground (the title "○○○○ ○ ”, the 10th floor above the ground level, the 78 household size from the 1st floor above the ground level, and the 1st building together with the building of this case; hereinafter "each business of this case" of this case was referred to as "each business of this case" of this case; hereinafter "each business of this case" of this case was referred to as "the second business of this case" of this case as combined with the 1 business of this case; hereinafter the shares in the second business of this case at the time of the above agreement was set as plaintiff 1, plaintiff 2, and defendant 1/3 (hereinafter "the second business of this case")

The main contents of the two-party partnership agreement of this case are as follows.

Articles 1, 1, 1, 1, and the Plaintiffs included in the main sentence of this Decree are engaged in a joint business from March 28, 2013, and the name of the business is determined as “○○○ ○○○” and the representative is Defendant 1. The shares in the joint business under Article 2 are as follows: Defendant 1 (1/3), Plaintiff 2 (1/3), and Plaintiff 1 (1/3), and all profits and expenses shall be distributed according to shares in accordance with the share ratio under Article 2; Defendant 1 and the Plaintiffs shall share the deposit for lease to the said workplace; and additional funds necessary for the commencement of the business, additional investments shall be made according to the share ratio, regardless of the completion of the business. The expenses and liabilities related to the business after the joint business contract under Article 4 shall be liable according to each individual share, regardless of the completion of the business. Article 5 shall be executed under mutual consultation.

(2) On April 2, 2013, Defendant 1 and the United States entered into a contract for construction works of the instant building No. 2, and the United States completed the construction works of the instant building No. 2.

(3) On November 15, 2013, Plaintiffs 1, 2, and 1 transferred part of their respective shares to Defendant 2 under the instant partnership agreement, and Defendant 2’s shares became 49%, and Defendant 1’s shares were changed to 11%, and Plaintiffs’ shares were changed to 20%, respectively.

Plaintiff 1, around November 25, 2014, and around August 31, 2015, Plaintiff 2 transferred all the remaining shares (20% each of the remaining shares (20%) under the instant trade agreement to Defendant 1, and Defendant 1’s shares became 51%.

(4) On January 21, 2015, Plaintiff 2 and the Defendants completed the registration of ownership preservation on the instant building Nos. 21, 2015 (the Plaintiff 20/10 shares, Defendant 110 shares, Defendant 210 shares, and Defendant 49 shares), and thereafter, Plaintiff 2 completed the registration of ownership transfer on June 19, 2015 with respect to the said shares on June 19, 2015.

(c) Completion of sale and payment of sale price;

(1) With respect to the instant project No. 1, the payment of the sales price and the sales price was completed on January 15, 2016, and the sales price was deposited into the account of Defendant 1’s bank, and the total sales price was KRW 7,513,550,000.

(2) With respect to the instant business No. 2, around November 30, 2015, the payment of sales proceeds and sales proceeds has been completed, and sales proceeds have been deposited into the national bank account of Defendant 2, and the total amount of sales proceeds is KRW 7,392,50,000.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 23 (including each branch number except for the case of specifying branch numbers), Eul evidence No. 1-1, Eul evidence No. 16-1 and the purport of whole pleadings

2. Determination as to the claim on the principal lawsuit

A. The plaintiffs' assertion

(1) The first partnership agreement of this case

(A) Plaintiff 1’s assertion

1) On the other hand, Defendant 1 is obligated to settle the profits arising from the termination of the instant first-class partnership agreement with Nonparty 2, a partner, and Plaintiff 1 acquired the right to claim the above amount of settlement from Nonparty 2 on April 30, 2016. As such, Defendant 1 is obligated to pay the amount of settlement following the termination of the instant first-class partnership agreement to Plaintiff 1, a transferee.

2) Preliminaryly, Plaintiff 1 was transferred from Nonparty 2 the status of a member of the instant partnership agreement, and the instant first partnership agreement was terminated due to the achievement of its objective, Defendant 1, a member of the instant partnership agreement, is obligated to distribute the remaining assets owned in excess of the legitimate distribution ratio.

(B) Plaintiff 2’s assertion

Since the first trade contract of this case was terminated due to the achievement of its purpose, Defendant 1 is obligated to distribute the remaining assets owned in excess of the legitimate distribution ratio to Plaintiff 2, a partner.

(2) The second partnership agreement of this case

(A) Mainly, Defendant 1’s transfer of shares (total 49%) under the instant partnership agreement to Defendant 2 is null and void as a false conspiracy mark. Defendant 2 is not a member of the instant partnership agreement. Therefore, Defendant 1 is obligated to distribute the remaining assets owned in excess of the lawful distribution ratio to the Plaintiffs, who are partners of the instant partnership agreement.

(B) Preliminaryly, the Plaintiffs and Defendant 1’s transfer of shares (total 49%) under the instant partnership agreement to Defendant 2 is not null and void, and Defendant 2 is also a member of the instant partnership agreement. Defendant 2 is obligated to distribute the remaining assets owned in excess of the reasonable distribution ratio to the Plaintiffs, a member of the instant partnership.

(3) Therefore, if the plaintiffs' claim amount pursuant to the above main and conjunctive assertion is organized, it is as follows:

Plaintiff 1 (Preliminary Claim) Claim Amount (Preliminary Claim) Plaintiff 2 (Preliminary Claim) Claim Amount (Preliminary Claim), Plaintiff 1 (Preliminary Claim), Plaintiff 2 (Preliminary Claim), which is included in the main text of this case, Defendant 167,315,205 won, Defendant 2, Defendant 167,315,205 won, Defendant 2,321,375,375,481 won, Defendant 26,787,278,278 won, total of KRW 489,313,453,453,4535,69,6086 won, and KRW 167,315,205,205, and KRW 273,321,98,2485, and KRW 266,788,278, 2164,511.

B. Determination

(1) Order of determination

Each of the instant partnership contracts is a contract under which two or more persons mutually invest to jointly operate each of the instant businesses, and constitutes a partnership agreement under the Civil Act.

Under the premise that each of the instant partnership contracts has been terminated due to the achievement of the objective, the Plaintiffs filed a claim for the allocation of the remaining assets against Defendant 1, who holds the remaining assets in excess of the legitimate distribution ratio in the position of the assignee (Plaintiff 1) of the claim for the settlement of accounts from Nonparty 2, a partner (Plaintiff 1) or the Plaintiff’s partner (Plaintiffs). As to the instant partnership 2 contracts, the Plaintiffs filed a claim for the distribution of the remaining assets against the Defendants in the position of partner.

Since the right to claim distribution of residual property can be exercised against the other union members who hold residual property in excess of their equity shares after the partnership relationship is terminated, the plaintiffs' right to claim a principal lawsuit is premised upon the non-party 2 or the plaintiffs have the status of union members at the time of termination of each of the partnership contracts of this case. Therefore, it is examined whether the non-party 2 or the plaintiffs have the status of union members at the time of termination

(2) At the time of termination of each of the instant partnership agreements, specific members

(A) Dissolution of partnership

Since the construction and sale of each of the buildings of this case, which are the purposes of each of the contracts of this case, was completed, it is reasonable to view that a cooperative under each of the contracts of this case was dissolved due to the achievement of its purpose.

(B) Members of the first partnership agreement of this case

1) A union member may dispose of his/her shares with the consent of all other union members, but cannot dispose of his/her shares separately from the qualification of union member in light of the purpose and organization of the union. As such, if a union member transfers his/her shares, he/she would lose the status of union member. The change in the status of union member becomes effective immediately by the agreement on the transfer and takeover of union shares. Meanwhile, whether there is an agreement on the transfer and takeover of union shares between the parties is in accordance with the general principles of interpretation of legal acts. In cases where there is a difference in the interpretation of a contract between the parties concerned, the interpretation of the parties' intent expressed in a disposition document is at issue, the contents of the text, motive and circumstance of the agreement, the purpose to be achieved by the agreement, the parties' genuine intent, etc. shall be comprehensively considered, and it shall be reasonably interpreted in accordance with logical and empirical rules (see, e.g., Supreme Court Decision

2) Taking full account of the following circumstances revealed in light of the overall purport of the arguments in the evidence as seen above, it is reasonable to view that only Defendant 1 and Nonparty 2 are cooperative members at the time of the conclusion of the instant first trade agreement as indicated below, by transferring their respective shares to Defendant 1 and Nonparty 2, and lose their status as cooperative members.

At the time of the conclusion of the first trade agreement of the instant Table included in the main text, around March 3, 2014, members of the Mutual Aid Association (as of January 15, 2016), Plaintiff 2 (25%) Plaintiff 2 (25%) Defendant 1 (5%) Defendant 1 (50%) Nonparty 1 (50%) Nonparty 1 (25%) Nonparty 2 (25%) Nonparty 2 (25%) as of January 15, 2016) at the time of the termination of the first trade agreement of the instant case.

A) In the first instance trial, the Plaintiffs asserted that the non-party 1’s share (25%) in the instant business partnership agreement was transferred to the non-party 2, that the non-party 2’s share (25%) was transferred to the non-party 1, and that the non-party 1’s share (25%) was finally changed to the non-party 1’s share of 75% and the non-party 2’s share of 25% (refer to the statement of the head office No. 4), and that the defendant 1 also recognized that the non-party 2 and the

B) On May 15, 2014, Nonparty 1 completed the registration of ownership transfer with respect to Nonparty 25/10 of the instant building on May 15, 2014, and Plaintiff 2 completed the registration of ownership transfer on May 6, 2015, with respect to the portion of 25/10 of the instant building on May 6, 2015, Nonparty 2 acquired the registration of ownership transfer in Defendant 1. Ultimately, Nonparty 2 owned 25/100 of the instant building and Defendant 1 owned 75/10 of the instant building.

C) Nonparty 2 asserted that he/she has 25% of the share in the instant business agreement, and transferred on April 30, 2016 the right to claim the settlement of accounts against Defendant 1 to Plaintiff 1.

(C) Members of the second partnership agreement of this case

1) According to the aforementioned basic facts and the purport of the entire pleadings, ① the Plaintiffs and Defendant 1, a partner at the time of entering into the instant secondary partnership agreement, assigned part of their shares (total 49%) to Defendant 2 around November 15, 2013 (the Plaintiff asserted that the transfer of shares against Defendant 2 constitutes a false declaration of conspiracy, but the evidence submitted by the Plaintiffs alone is insufficient to recognize it, and there is no other evidence to acknowledge it). ② Plaintiff 1 and Plaintiff 2 transferred all of their remaining shares (each 20%) around November 25, 2014 and August 31, 2015 to Defendant 1.

2) According to the above facts, as listed below, the plaintiffs transferred all of the plaintiffs' shares under the two partnership contracts of this case to the defendants, thereby losing their membership status. At the time of termination of the two partnership contracts of this case, it is reasonable to view that only the defendants are union members.

Plaintiff 2 (Share 1/3) Defendant 2 (Share 49%) Plaintiff 1 (Share 1/3), Defendant 2 (share 20%) Defendant 1 (share 51/3), Defendant 1 (share 51/3), Defendant 1 (share 51/3), and Defendant 1 (share 20%) Defendant 2 (share 1/3), as of November 15, 2013, at the time of the conclusion of the second trade agreement of this case as of November 30, 2015).

(3) As to the claim against the plaintiff 1 for the acquisition amount related to the first partnership agreement of this case against the defendant 1

(A) A claim for distribution of remaining assets

1) A union is dissolved due to the achievement of its objectives, but there is no way to treat the remaining assets as remaining business of the union. However, where only the distribution of the remaining assets remains, each union member may, without undergoing separate liquidation procedures, demand immediately the union member who owns the remaining assets in excess of the distribution ratio within the scope of his/her own residual assets distribution ratio. In such cases, the right to demand distribution of the remaining assets is arising from internal relationships between the union members, and it is sufficient that each union member individually exercises the remaining assets against the union members who own the remaining assets in excess of the distribution ratio, and it does not necessarily require the union members to jointly exercise the remaining assets or exercise the remaining assets against all the union members (see Supreme Court Decision 9Da35713, Apr. 21,

2) The association was dissolved as a result of the achievement of the purpose of the first partnership agreement of this case, and the association’s remaining business is deemed not to be specially treated as the remaining business of the association. As such, at the time of the termination of the first partnership agreement of this case, Nonparty 2, a partner, may claim for the distribution of the remaining property against Defendant 1, who is another partner within the scope of its ratio of distribution of the remaining property. If Defendant 1 owns the remaining property in excess of the legitimate ratio of distribution, Plaintiff 1, who received the right to claim for the distribution of the remaining property

(B) Residual property of the first partnership agreement of this case

1) Calculation Method

Since there is no dispute between the Plaintiff 1 and Defendant 1, the transferee, with respect to the settlement method that distributes the remaining amount after deducting the amount equivalent to the project cost from the sales proceeds of the building No. 1, the sales proceeds of this case, pursuant to the share ratio of Nonparty 2 and Defendant 1 (25%:75%), there is no difference between the Plaintiff 1 and Defendant

(ii) proceeds from sale and costs of projects;

A) In relation to the instant business No. 1, Defendant 1 received KRW 7,513,50,000 as sales price, there is no dispute between the parties, and according to the appraisal results and the purport of the entire pleadings by Nonparty 3 of the first instance trial appraiser Nonparty 3, it can be acknowledged that business expenses incurred in relation to the instant business No. 1 are KRW 6,943,206,440.

B) Plaintiff 1’s assertion

① First, Plaintiff 1 embezzled the sales price received by Defendant 1 as his own account by diverting it to a business unrelated to the instant business without permission, and the amount of the embezzlement is much more than KRW 238,00,000 of the invested principal invested by Plaintiff 1 in connection with the instant business. Thus, Plaintiff 1 asserts to the purport that the said investment principal should be included in the profit of the instant business or should be excluded from the business expense.

On the other hand, in a case where a union suffers loss due to an act of breach of trust of a union member, the person who suffered loss due to the act of breach of trust of a union member, and even if the purpose of the union cannot be achieved, the union member is not entitled to seek compensation in the position of an individual who deviates from the union relationship (see Supreme Court Decision 98Da60484 delivered on June 8, 199). However, in a case where the union relationship is terminated due to an act of breach of trust and the remaining business of the union is not maintained in the form of damages claim against the union member who committed the act of breach of trust, the other union member may claim as a share of the amount equivalent to his value of his own investment among the damage claim amount (see Supreme Court Decision 92Da2509 delivered on April 24, 1992).

However, the evidence submitted by the plaintiff 1 alone is insufficient to recognize the fact that the defendant 1 violated the duty to conduct the business partnership agreement of this case and committed a breach of trust or embezzlement, and there is no other evidence to acknowledge it. Thus, the above assertion by the plaintiff 1 is without merit without further review.

② Next, in relation to the project cost, Plaintiff 1 entered into a contract for the construction work related to the instant primary project by the so-called total contract, and among the project cost presented by Defendant 1, the total amount of KRW 4,713,260, the electricity cost of KRW 6,545,00, the electricity cost of KRW 9,816,30, the water supply cost of KRW 121,000, the sewage cost of KRW 121,000, the fire-fighting supervision cost of KRW 4,950,00, the electric safety management cost of KRW 209,000, the civil petition cost of KRW 1,50,000, the electricity cost of KRW 2,235,700, the total of KRW 30,090,360, the construction cost of KRW 3,50,000,000 shall be excluded from the calculation of the project cost.

However, the evidence submitted by Plaintiff 1 alone is insufficient to recognize that the contract for the construction project of this case was concluded by the total contract method, and even if it was conducted by the total contract method, there is no evidence to support that the above cost claimed by Plaintiff 1 should not be included in the construction cost. Thus, this part of the Plaintiff 1’s assertion is without merit.

C) Defendant 1’s assertion

Defendant 1 asserts that in relation to the instant business No. 1, the actual cost of the business is more than the cost of the business recognized by the appraiser of the first instance court as the cost of KRW 7,500,323,420.

However, only with the descriptions of Gap evidence Nos. 15 and Eul evidence Nos. 1, it is not sufficient to recognize that the business expenses actually incurred in relation to the business of this case No. 1 are KRW 7,500,323,420, and there is no other evidence to acknowledge this otherwise, the above assertion by defendant No. 1 is without merit.

3) According to the aforementioned facts and the purport of the entire pleadings, the remaining assets of the instant business partnership agreement are 570,343,560 won (7,513,550,000 won - 6,943,206,440 won) calculated by deducting business expenses from the sales revenue recognized as above, and the legitimate distribution ratio is “non-party 225% and Defendant 175%,” and Defendant 1 has the above remaining assets by entirely managing sales revenue related to the instant business No. 1.

(C) Sub-determination

Therefore, Defendant 1 is obligated to pay 142,585,890 won (570,343,560 won x 25%) and 100,000,000 won from June 10, 2016 following the date of delivery of a duplicate of the main complaint of this case to Plaintiff 1 for KRW 42,585,890, which is equivalent to the distribution ratio (25%) of Nonparty 2, who is a member of the Plaintiff 1, as transfer money, to Plaintiff 1, for the amount of KRW 142,58,00 from June 10, 2016, and for the amount of KRW 42,585,890 from the date of delivery of a duplicate of the main complaint of this case to December 14, 2017, which is deemed reasonable for each Defendant 1 to object to the existence or scope of the obligation to pay damages for delay from January 11, 2019.

(4) As to the claim against the defendant 1 for the distribution of remaining assets related to the first partnership agreement of this case against the plaintiff 2

In light of the above, Plaintiff 2 was a partner at the time of entering into the instant first partnership agreement, but Plaintiff 2 transferred his shares to Defendant 1 and lost his status as a partner. Thus, Plaintiff 2’s claim for distribution of remaining assets against Defendant 1 on the premise that Plaintiff 2 is a member of the instant first partnership agreement, cannot be accepted without further review.

(5) As to the plaintiffs' claims for distribution of residual property related to the second partnership agreement of this case against the defendants

The plaintiffs were partners at the time of entering into the second trade agreement of this case, but their shares were transferred to the defendants and lost their status as partners. Therefore, the plaintiffs' claim for the distribution of residual property against the defendants on the premise that they are members of the second trade agreement of this case cannot be accepted without further review.

3. Judgment on a counterclaim

A. Grounds for the defendants' counterclaim

(1) According to the result of the appraisal by Nonparty 3 of the first instance trial, the net profit generated in relation to the instant business No. 1 is KRW 570,343,560, and the net profit to be reverted to the Plaintiffs are KRW 142,585,890, each of which is 25%, and the net profit generated in relation to the instant business No. 2 is KRW 699,214,239, and the net profit to be reverted to the Plaintiffs are KRW 139,842,848, each of which is 20%.

(2) The Plaintiffs used the following money held by the Defendants as provisional payment. The Plaintiffs’ obligation to return the provisional payment is, regardless of the partnership’s business, a personal obligation to the Defendants.

- Provisional payments related to the first project of this case (Defendant 1's payment)

Do Governor 1: Provisional Payment 215,500,000 won

Do Governor 2: Provisional Payment 315,500,000 won

- Provisional payments related to the second business of this case (Defendant 2's payment)

Do Governor 1: Provisional Payment 345,902,233 won

Do Governor 2: Provisional Payment 394,525,000 won

(3) The Defendants paid the following money in lieu of the Plaintiff’s share transfer expenses and incidental expenses (hereinafter “share transfer expenses”) during the process of the instant business. As such, the Plaintiffs shall pay the said money to the Defendants.

- With respect to the instant one business (Defendant 1’s disbursement)

Do Governor 1: 1,000,000 won

Plaintiff 2: 56,168,528 won

- With respect to the two projects of this case (the disbursement by Defendant 2)

Do Governor 1: 17,880,100 won

Plaintiff 2: 37,526,400 won

(4) Defendant 1 paid taxes, such as property tax and income tax, on behalf of the Plaintiffs in the course of the instant project. Since such amount is KRW 125,514,590, Plaintiff 21,030,510, and Plaintiff 211,030,510, Defendant 1 paid each of the above amounts to Defendant 1. In addition, the part imposed on each of the instant buildings of KRW 345,33,760 (global income tax and local income tax, etc.) imposed on Defendant 1 should be borne by the Plaintiffs for each share of investment and returned to Defendant 1. Thus, the Plaintiffs seek payment of KRW 1,00,000, which is part of the above taxes.

(5) Accordingly, the plaintiffs are obligated to pay to the defendants the above provisional payment, share transfer expenses, tax payment to 205 won, less the proceeds under each of the instant business agreements. ① The plaintiff 1 is obligated to pay 100,428,70 won [215,50,000 won + 1,000 won for share transfer + 26,514,590 won (25,514,590 + 1,000 won + 1,500 won for share transfer + 1,5050 won + 142,585,890 won for each of the instant business, 205 won [20,58,890 won] - 223,939,489,485 won for each of the instant business contracts to the defendant 2, 305 won for share transfer expenses + 250,500 won for each of the instant 1 business, 305 won for shares transfer expenses - - 2501,5018181,481,20

Therefore, the Defendants, as a part of their claims, seek the payment of the amount stated in the counterclaim claim against the Plaintiffs.

B. Determination

(1) As to the portion of the provisional payment

(A) In relation to each of the instant trade agreements, the Plaintiffs are those who received the provisional payment from the partnership as specified in the following table.

Plaintiff 1215,50,000,000 won, 2315,500,000 won, 2315,50,000 won, 394,525,000 won, which is included in the main text, for the provisional payment related to the second business of this case related to the second business of this case

(B) Meanwhile, the Defendants seek the return of the said provisional payment against the Plaintiffs in the capacity of an individual who deviates from the partnership relationship.

However, there is no evidence to prove that the Defendants personally paid the above provisional payment to the Plaintiffs, and that the Plaintiffs agreed to return the above provisional payment to the Defendants other than the union.

Furthermore, even if the plaintiffs are liable to return part of the provisional payment amount to the partnership, it is a claim of the partnership, which belongs to all the union members, and the lawsuit pertaining to the partnership property constitutes an inherent indispensable co-litigation to be jointly filed by the union members, barring special circumstances (see Supreme Court Decision 2012Da4471, Nov. 29, 2012). Even when the partnership is dissolved, the partnership property continues to be jointly owned by the union members unless it is distributed to the union members through liquidation procedures, and the partnership continues to exist until the liquidation is completed (see Supreme Court Decision 92Da28075, Oct. 9, 192). Thus, the defendants cannot seek the return from an individual outside of the partnership relationship.

Therefore, this part of the defendants' assertion is without merit.

(2) As to the share transfer cost, tax arrears, etc.

The Defendants seek reimbursement of the Plaintiff’s share transfer cost and the amount of tax in the capacity of an individual who deviates from partnership relations. However, there is no evidence to prove that the Defendants personally paid the Plaintiffs’ share transfer cost and taxes, etc., and there is no evidence to prove that the Plaintiffs agreed to return them to the Defendants.

Therefore, this part of the defendants' assertion is without merit.

(3) Ultimately, the Defendants’ counterclaim claim cannot be accepted in entirety.

4. Conclusion

Thus, the plaintiff 1's claim against the plaintiff 1 against the defendant 1 shall be accepted within the extent of the above recognition, and the remaining claim against the plaintiff 1 against the defendant 1, the main claim against the defendant 2, the plaintiff 2's claim against the main claim against the plaintiff 2, and the counterclaim against the defendants shall be dismissed as all without merit.

Of the judgment of the court of first instance, the part on the claim against the defendant 1 by the plaintiff 1 against the defendant 1 is unfair in conclusion. Thus, the part on the claim against the plaintiff 1 which was partially accepted the appeal by the plaintiff 1 and revoked the part on the claim against the plaintiff 1 corresponding to the above order for payment, and order the payment of the said money to the defendant 1. The remaining appeal against the plaintiff 1 and the appeal against the plaintiff 2 against the plaintiff 1 and against the defendants' counterclaim are all dismissed as it is without merit.

Judge Ori (Presiding Judge)

(1) Plaintiff 1 filed a claim against Defendant 1 for the payment of the damages for delay incurred from July 28, 2015, while Plaintiff 1 filed a claim against Defendant 1 for the payment of the damages for delay from July 28, 2015. However, Plaintiff 1 filed a claim against Defendant 1 through the main claim and the application for the change of the purport of the main claim and the cause of the claim as of December 14, 2017, after acquiring the claims for the settlement amount without any fixed deadline for payment from Nonparty 2. Thus, Defendant 1 is liable for delay from the date following Defendant 1 received the main claim and the application for the change of the purport and cause of the claim as of December 14, 2017