2011Na12488 Return of Investment Funds

1. Kim○-○

Chang-gu Masan-si

2. Stambed ○.

The window of Changwon-si

[Defendant-Appellant] Lee Jae-won, Counsel for defendant-appellant

○ Transportation Corporation

The window of Changwon-si

the representative director ○○

Law Firm Sejong-won, Counsel for the plaintiff-appellant

Attorney Kim Young-gu, Gyeong-chul

Changwon District Court Decision 2010Kadan6669 Decided September 30, 201

May 30, 2012

June 20, 2012

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

Defendant’s 20,00,000 won for Plaintiff Kim ○, and 15,00,000 won for Plaintiff Park ○ and each of the said money to Plaintiff Kim ○○.

From January 19, 2010 to the pronouncement date of this case, 5% per annum and full payment from the following day shall be made.

By the day, 20% interest per annum shall be paid.

1. Conclusion of the instant agreement

The following facts are not disputed between the parties, or found in Gap evidence 1, 2 (including branch numbers; hereinafter the same shall apply) and Eul evidence 1, 2, and 3, taking into account the whole purport of the pleadings:

A. On September 16, 2009, Plaintiff Kim ○○ made an investment of KRW 20,00,00 in the Defendant with the Defendant running a truck transport and brokerage business, etc., and on the part of the Defendant, the Defendant entered into a transport contract with the Defendant at the Defendant’s expense to remodel the vehicle into a special device and sell the said vehicle to the Defendant. The Plaintiff Kim○○ opened the business in such a way that the Plaintiff Kim○○ operated the said vehicle to carry out the transport contract with the Defendant before selling the said vehicle to the Plaintiff Kim○○, and the two-thirds of the net income from the expense to be distributed to the Plaintiff Kim○○○, and the remainder one-third of the monthly transportation fee to the Plaintiff Kim○○, and the remainder of the monthly transportation fee to the Plaintiff Kim○○, which was incurred by the Plaintiff Kim○○○ by driving the vehicle to be distributed to the Defendant. The Defendant agreed to distribute the remainder to the Plaintiff Kim○ and the remainder of one-third to the Defendant.

B. On October 14, 2009, the Plaintiff Park ○○ also invested KRW 15,00,000 with the Defendant, and the Defendant’s business is conducted in the same manner as the above paragraph (a). The distribution of profits was agreed to distribute 80% of the net income other than the expenses for vehicle entry to the Defendant, and the remainder 20% to the Defendant, and in the case of monthly transportation charges incurred by the Plaintiff Park ○○ by driving a vehicle, the remainder 1/3 was distributed to the Plaintiff Park ○○, and the remainder 1/3 was distributed to the Defendant (hereinafter referred to as the “instant agreement”) and the remainder 1/3 was distributed to the Defendant (hereinafter referred to as the “Plaintiff Kim ○○ and the agreement between the Plaintiff Park ○ and the Defendant and the Defendant”).

C. Pursuant to each of the instant agreements, the Plaintiff Kim ○○ paid KRW 20,00,00 to the Defendant, and the Plaintiff Park ○○○ to the Defendant KRW 15,00,00, and KRW 100 to the Defendant respectively. Since then, the Defendant paid KRW 3,130,000 on October 17, 2009, KRW 4,000,000 on December 31, 2009, KRW 7,130,000, and KRW 7,000 on December 31, 2009, and KRW 3,000,000 on December 1, 2009, to the Plaintiff Park ○○○○, respectively.

D. On the other hand, on January 18, 2010, the Plaintiffs sent by mail a certificate of content that demands the return of the money paid to the Defendant in accordance with each of the instant agreements to the Defendant by reason of the Defendant’s breach of contract and illegal act. The mail of content certification reached the Defendant around that time.

2. Summary of the plaintiffs' assertion

The money paid by the plaintiffs to the defendant is a deposit of the nature of the fidelity guarantee that guarantees the damage that the plaintiffs may sustain in the course of operating a vehicle purchased by the defendant. The defendant distributed profits according to each of the agreements of this case at a certain ratio, but did not properly distribute profits, and the defendant cancelled each of the agreements of this case on the grounds of the defendant's exclusive operation and illegal operation. As long as each of the agreements of this case was cancelled due to the reasons attributable to the defendant, the defendant is obligated to return the deposit that the plaintiffs paid to the defendant (the plaintiff Kim○-○: 20,000, 15,000, and 00 won).

3. Determination

According to the above facts, each of the instant agreements can be deemed as a partnership agreement with the content that the plaintiffs invested in the defendant's land-building and transport business and carried out the same business and distribute profits from that part of the agreement. When the mail proving the purport that the plaintiffs demanded the return of the money paid to the defendant under each of the instant agreements reaches the defendant, it is reasonable to view that the plaintiffs withdrawn from the partnership relationship.

Furthermore, as to whether the money received from the plaintiffs under each of the instant agreements is a deposit of the nature of the guarantee of identity, there is no evidence to acknowledge that the money paid by the plaintiffs to the defendant is a deposit as alleged above by the plaintiffs. Rather, in light of the purport of the entire pleadings, the money paid by the plaintiffs to the defendant is an investment deposit. In light of the following facts: Gap's evidence Nos. 1, 2, 3, Eul's evidence Nos. 1, 2, and 5; the witness's testimony; and the defendant's testimony at Park ○-○'s own newspaper, it is true that the money paid by the plaintiffs to the defendant is an investment deposit; except for seeking the return of the investment share after the liquidation procedure following the termination of the pertinent agreement, it is not possible to seek the return of the total amount of the investment deposit under the pretext of restoration (see Supreme Court Decision 94Da7157, May 13, 199; 200 Do3025, etc., which is not paid by the plaintiff 4's evidence No.

Therefore, the plaintiffs' assertion is without merit.

4. Conclusion

If so, the plaintiffs' claims should be dismissed in entirety due to the lack of grounds. The judgment of the court of first instance shall be dismissed.

Inasmuch as the conclusion is the same, all appeals filed by the plaintiffs are dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge's office

Judges Kim Young-ju

Judges Kim Gin-ju