The ratio of investment between the partners of an enterprise established by making a loan secured by a real estate of one of the partners as the total amount of investment without any other investment agreement.

If a partner does not make an ordinary investment in his own share from the beginning, but instead makes a loan secured by one of the partners as a total contribution, and there is no actual investment agreement other than the agreement to appropriate it for the operating expenses of the company, but the ratio of the profit and loss sharing among the partners is set equally, it is reasonable to presume that the ratio of the investment by the above loan amount is equal unless there are special circumstances.

Article 711 of the Civil Act

Plaintiff (Attorney Kim Tae-tae, Counsel for plaintiff-appellant)

Defendant

Seoul High Court Decision 84Na4185 decided September 27, 1985

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

1. The plaintiff's attorney's grounds of appeal Nos. 1 and 2 are also examined.

(1) According to the reasoning of the judgment below, the court below rejected the above plaintiff's letter of claim on the ground that the plaintiff entered into a partnership business agreement with the defendant and the non-party to jointly manage the export sale of electronic equipment and sought repayment of KRW 40,87,406 out of the above repayment amount of KRW 45,220,739, which is the defendant's 1/3 of the above repayment amount, on the ground that the above third party agreed to make the above third party's investment in the fund of the above company in the name of the non-party international commercial company, and the above borrowed amount of KRW 94,574,80 from the non-party international commercial company in the name of the non-party international commercial company.

(2) 그러나 피고의 1985.5.23.자 준비서면(원심 제7차 변론기일에 진술)을 보면 피고는 위 차용금 중 3분의 1 상당액이 피고의 동업분담 투자금임을 명백히 다투지 않고 있으므로 이를 자백한 것으로 간주될 뿐 아니라, 동업계약서(갑 제1호증) 제5조에 의하면 위 차용금으로서 동업체의 운영경비 일체를 충당하기로 약정하였고 그 밖에 달리 실질적인 출자약정을 한 바 없음이 인정되는 한편 같은 계약서 제6조에 의하면 동업자 3인 사이의 손익분배비율을 균등하게 정하고 있는 사실이 인정되므로 특단의 사정이 없는한 위 차용금액에 의한 출자비율은 균등한 것으로 추정함이 타당하다고 할 것이다.

However, Article 5 of the above business partnership agreement provides that the Dong company of this case is not a normal action by joint investment, but the amount borrowed from the non-party international commercial corporation as security, and the defendant shall make a provisional registration and a protocol of settlement on real estate owned by the defendant for the plaintiff. Thus, it shall be deemed that the phrase that the above business partnership does not constitute a normal action by joint investment is merely an expression of the purport that the plaintiff's real estate is not an ordinary case where three partners make an investment from the beginning, but a loan secured by the plaintiff's own real estate is a total amount of investment.

(3) Ultimately, the judgment of the court below is erroneous in the misapprehension of the rules of evidence, which affected the conclusion of the judgment, and it constitutes a ground for reversal under Article 12(2) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for further proceedings. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-soo (Presiding Justice)