In a case where a partner’s investment in violation of his/her duties is disqualified, whether a partner may claim compensation for damages in the position of an individual who deviates from the partnership relationship (negative)

In a case where a part of a partner invested in a partnership in accordance with a partnership business contract, and the partner's performance of duties violates his/her main duties or acts in excess of his/her authority makes it impossible to achieve the purpose of partnership business, and where all the partner's investments are disqualified, the person who suffered damages therefrom shall be the partnership that has lost the partner's funds, i.e., the partnership that has been composed of the union members. As a result, even if the partner contributed to the partner's funds, this does not cause damages to the partner regardless of the partnership and the damages incurred to the partner's position that constitutes the partnership, and therefore, the victim's member shall not seek compensation for damages in the position of an individual who

Articles 703, 704, and 750 of the Civil Act

Supreme Court Decision 94Da52881 delivered on September 20, 1996 (Gong1996Ha, 3101) Supreme Court Decision 95Da35302 delivered on November 28, 1997 (Gong1998Sang, 23)

[Judgment of the court below]

Defendant

Seoul High Court Decision 98Na5953 delivered on October 27, 1998

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

The First Ground for Appeal

According to the reasoning of the judgment below, the court below determined that the witness 1 of the first instance court, who corresponds to the plaintiff's assertion, did not have any intention or ability to operate the casino business, and if the defendant participates in the casino business as well as the defendant's compensation by investing funds with the plaintiff et al., the court below held that the defendant's testimony was rejected for the reasons as stated in the judgment of the court below, and it is not sufficient to recognize it by all other evidences of the plaintiff, as well as there is no error of law of misconception of facts due to the violation of the rules of evidence, as alleged in the grounds for appeal No. 1.1. The judgment of the court below is just and there is no ground for appeal No. 1.

The Second Ground of Appeal

In a case where a part of a partner invested in a partnership in accordance with the partnership business agreement, and the partner's investment in the partnership can no longer achieve the purpose of partnership business by going against or going beyond the principal duties of the partnership, and all the partner's investment in the partnership are deprived of the partner's membership, i.e., the partnership which is composed of the union members, and even if the partner's investment in the partnership was caused by the loss of the partner's investment in the partnership, it is not an individual member's loss regardless of the partnership's membership, but an individual member's status as an association member's member, and the victim's member cannot seek compensation from an individual member's status beyond the partnership's relationship (see, e.g., Supreme Court Decisions 94Da5281, Sept. 20, 1996; 95Da35302, Nov. 28, 1997; 2000Da35302, Feb. 12, 2008).

The plaintiff alleged in the ground of appeal No. 2 that the union of this case was actually dissolved due to the impossibility of achieving its purpose, and the remaining business is not remaining, so only the distribution of residual property is a matter, and therefore, the plaintiff, a member of the union, can seek damages individually against the defendant, who is an executive partner who committed an illegal act according to his/her share ratio. However, according to the records, the plaintiff asserted that the association agreement termination is to exercise the right to claim the distribution of residual property from the dissolution of the union of this case, and the plaintiff asserted the refund of share due to the plaintiff's withdrawal from the association of this case and claimed the conjunctive claim accordingly, but the court of first instance dismissed the conjunctive claim. The plaintiff explicitly withdrawn each claim through the preparatory document of August 17, 1998 submitted by the court below, and it is evident that the plaintiff changed the conjunctive claim from each of the above arguments to the claim for the payment of agreed amount. Thus, the above claim is nothing more than again cited in the claim that had already been withdrawn at the court below and it cannot be a legitimate

As to the third ground for appeal

Finally, as to the plaintiff's assertion of the agreement on the return of investment funds, the court below, based on the evidence of its ruling, requested the plaintiff to make a return of 40,00,000 won not yet invested among the amount originally agreed by the plaintiff around October 1995, on the premise that the plaintiff should make an investment. The plaintiff's own shipping behavior and other partners who are different from the defendant's own shipping behavior criticizes the defendant's opinion demanding the plaintiff to perform the remaining investment obligations only, and ordered the defendant to raise questions as to the place where the defendant used the funds and to fulfill the remaining investment obligations, and it is difficult to view that the plaintiff's remaining investment obligations were not clearly stated in the grounds for appeal that the plaintiff could not be returned to the plaintiff by not later than the end of March 1996, but it is difficult to see that the plaintiff did not have an opinion of 10,000 won because it did not clearly state that the plaintiff's remaining investment obligations could not be returned to the non-party 2, which was in violation of the rules of evidence.

Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Seo Sung-sung (Presiding Justice)