Plaintiff (Attorney Hwang Young-young, Counsel for the plaintiff-appellant)

Defendant (Attorney Park Jin-ho, Counsel for defendant-appellant)

July 8, 2014

Daegu District Court Decision 2010Gahap1628 Decided October 13, 2011

1. All of the claims of this case filed by the plaintiff that was changed in exchange at the trial is dismissed.

2. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 2,070,099,803 won with 5% per annum from December 19, 2009 to the date of a final judgment, and 20% per annum from the next day to the date of full payment (the plaintiff shall seek confirmation from the first instance court that the relationship of the business exists under the agreement between the plaintiff and the defendant on August 25, 1997, and the lawsuit was changed in exchange for exchange as it is seeking settlement, etc. due to the termination of the relationship).

2. Purport of appeal

The judgment of the first instance shall be revoked. The judgment of the plaintiff and the defendant confirm that the same trade relationship established under the same trade contract of August 25, 1997, which is a joint business of "a captain agency, tax adjustment, and other tax accounting affairs" between the plaintiff and the defendant, exists (Provided, That the judgment of the first instance has lost its effect due to the change of claim in exchange at the plaintiff's trial).

1. Basic facts

A. The Plaintiff, as a certified public accountant, operated a personal accounting office in the racing (hereinafter referred to as a "ordinary accounting office"), and the Defendant also operated the personal accounting office in Seoul as a certified public accounting company.

B. On August 25, 1997, the Plaintiff and the Defendant concluded a partnership agreement with the following contents (hereinafter “instant partnership agreement”).

(2) The business name shall be 0,000 won to 9: (3) the business name shall be 0,000 won; (4) the business period shall be from 197 July 29, 1997 to 20 June 30, 2012; (3) the business name shall be 9: the business name shall be 0,000 won to 9. The business name shall be 9,000 won to 20,000 won; and (4) the business name shall be 9,000 won to 9,000 won to 9,000 won; and (5) the amount shall be 9,000 won to 9,000 won to 9,000 won to 20,000 won to 9,000 won to 30,000 won to 9,000 won to 9,000 won to 20,000 won to 9,000 won to 7,00.

C. At the time of the conclusion of the instant agreement, the Plaintiff and the head of its racing office Nonparty 1 decided to repay the initial investment capital of KRW 200 million and its financial costs, which the Defendant decided to make an investment by obtaining a loan from a financial institution, etc., from August 1, 1997 to August 2002. However, in order to guarantee the repayment of the initial investment capital of KRW 200 million and its financial costs, and to guarantee the payment of the fixed amount that the Plaintiff shall pay to the Defendant from September 1, 1997 to August 2002, the Plaintiff and Nonparty 1 decided to prepare and deliver to the Defendant a notarial deed as to the promissory note. Accordingly, the Plaintiff and Nonparty 1 issued a joint issuer on September 1, 1997, a promissory note amounting to KRW 5770 million with the addressee, and then made it available to the Defendant.

D. On September 16, 1997, the Defendant borrowed KRW 200 million from financial institutions under the name of himself and his relatives and invested it as the first investment fund. The Defendant acquired the △△△ Certified Tax Accountants Office located in Seoul with the investment money, and transferred the name of the ○○○ Tax Accounting Office (hereinafter “instant office”). The name of the ○○○○ Tax Accounting Office (hereinafter “instant office”).

E. On November 19, 198, the Plaintiff and the Defendant added “all profits arising from direct connection with the instant office” to the scope of the joint business under the instant agreement, and changed the business fiscal year from September 1 to August 31 of the following year, and concluded an additional agreement that designates Nonparty 1 as the Plaintiff’s agent.

F. As to the operation of the instant office, the Plaintiff prepared each report of accounts for the first business year ( August 25, 1997 - August 31, 1998) and the second business year ( September 1, 1998 - August 31, 1999), and the Plaintiff, the Defendant, and the Nonparty 1 confirmed each report of accounts, and signed and sealed each report of accounts.

G. On August 1998, the Plaintiff and the Defendant acquired the additional acquisition fund of 300 million won (hereinafter referred to as “additional acquisition fund”) in order to expand the trading company.

H. The Defendant continued to reside in Seoul at the beginning of the instant business. Around February 2000, the Defendant liquidated his Seoul life and moved at a port with his family, and started to work at the instant office.

I. Around October 2003, the Defendant changed the way of performing the duties of the Tax Accounting Book, which is the main duties of the instant office, to the CI system (a method of separating the pre-paid duties, the amount of receipts and disbursements, and the settlement of accounts, etc.) of CI (a method of sharing different employees among different employees). On December 1, 2007, the Defendant promoted Nonparty 2 to the head of the office without being compared to the Plaintiff and Nonparty 1, and thereafter, exercised the personnel rights to the employees by directly participating in the duties of the instant office, such as promoting Nonparty 3 to the head of the team.

j. Nonparty 1, while working as the chief or director of the instant office while holding the office of the racing office, was involved in the accounting affairs and personnel affairs of the instant office by exercising the right to pass a resolution on the internal documents of the instant office (the expenditure resolution, the branch opening, the daily table, etc.).

C. Meanwhile, the instant office and the racing office jointly held several events, such as staff campings, friendship gatherings, and youth gatherings, even after October 2001.

(l) On December 11, 2009, the Defendant sent a notice of dismissal to Nonparty 1 on the ground of “the outside of the funeral period, the unauthorized concurrent operation, the job attitude, the failure to give instructions, and the withdrawal of obscure funds, etc.,” and Nonparty 1 demanded the Defendant to close down and dispose of the instant office until December 21, 2009, as the Defendant intentionally violated or terminated the contract as the Plaintiff’s agent qualification. Accordingly, on December 18, 2009, the Defendant requested the Defendant to close down and dispose of the instant office until December 21, 2009. The Defendant sent to Nonparty 1 a certificate of content that the Plaintiff dismissed Nonparty 1 on the ground of the Plaintiff’s negligence on duty, etc., and on the other hand, sent to Nonparty 1 the certificate of content that he would seek cooperation. On the other hand, Nonparty 1 returned the external hard disks disc containing relevant materials, such as the instant office, and accounting books, and sent the certificate of content that the instant business agreement was already terminated.

On January 5, 2010, the Plaintiff: (a) asserted that the Defendant was not entitled to dismiss Nonparty 1’s agent; and (b) issued to the Defendant a certificate of content that contains the Defendant’s demand to return the amount received at will by the Defendant.

(m) On February 4, 2010, the Plaintiff and Nonparty 1 filed an application for provisional disposition against the Defendant to the effect that they were in a partnership relationship with the Defendant with regard to the instant office, or in a partnership relationship with the Defendant, and that they were managers with regard to the said business, and that they would not interfere with their entrance to the instant office and the performance of their duties pertaining to the said business (hereinafter referred to as “related provisional disposition case”). Accordingly, the Defendant notified the Plaintiff and Nonparty 1 of the termination of the instant partnership contract through a written response from March 23, 2010 in the relevant provisional disposition case.

[Ground for recognition] Unsatisfy facts (see, e.g., Supreme Court Decision 13Da13, Plaintiff’s preparatory documents received on Jul. 3, 2014, and Defendant’s preparatory documents received on Jul. 2, 2014), Gap evidence 1, 2, Gap evidence 3-1 through 13, Gap evidence 4, 5, 6, Gap evidence 7-1 through 4, Gap evidence 8, Gap evidence 9-1 through 10, Gap evidence 10-1 through 20, Gap evidence 11, 12, 13, evidence 14-1 through 31, Gap evidence 15-1, 2, 3, Gap evidence 16, 17, Gap evidence 20-2 through 25, Gap evidence 23-1, Eul evidence 4, Eul evidence 9-1, Eul evidence 2, Eul evidence 3-1 to 4, Eul evidence 2, Eul evidence 3-1, evidence 2, Eul evidence 3-1 through 4-1, evidence 2, Eul

2. The plaintiff's assertion

(a) Claim on the amount settled;

As determined in the first instance trial, the agreement between the Plaintiff and the Defendant was terminated by the Defendant’s claim for dissolution due to inevitable reasons on December 27, 2009. As such, the Defendant independently occupies and operates the instant office until now, the Defendant first has the obligation to pay to the Plaintiff the amount of settlement following the termination of the agreement of the instant business. ① The amount of profits distributed until the termination of the agreement of the instant business: (1), 139,967,374 won [1,139,967,374 won (=2,279,934,934,748 x 1/2) - Non-Party 1’s provisional payment (provisional payment) - 305,904,857 won) - 242,412 x 485,424,484,482,529 x 2936,296,379,296,370,296,36,296, etc.

B. The argument on the loan

The Plaintiff lent operating funds for the instant partnership business to the Defendant operating the instant office. As of December 27, 2009, the Plaintiff still remains unpaid loans of KRW 202,410,122 (hereinafter “the instant loan balance”), the Defendant is obligated to pay the Plaintiff the loan balance of KRW 202,410,122 and its delay damages.

3. Determination

A. Whether the alteration of the lawsuit in this case is lawful

1) The defendant's assertion

The defendant asserts that "the plaintiff is seeking settlement, etc. based on the claim for the existence of the partnership relationship in the first instance and the claim for resolution of the partnership relationship in the first instance shall not be permitted since the ground of the claim is inconsistent with each other, and the deliberation of new facts related to the settlement of accounts and the provision of new special panel litigation data are required, so it shall not be permitted as it significantly delays the litigation procedures."

2) Determination

The modification of a claim can be done by the time of the closing of argument in the fact-finding court unless it is obvious to delay the proceedings, and the modification of the purport of the claim and the cause of the claim, which is merely a different resolution method, in the same living facts or disputes concerning the same economic interests, do not change the basis of the claim. In addition, where most of the previous litigation data can be used for the purpose of examining the new claim, it cannot be said that it would be remarkably delayed the proceedings (see Supreme Court Decision 97Da4416, Apr. 24, 1998).

With respect to this case, the public health unit and the plaintiff thought that the same business contract of this case remains effective in the first instance court, and sought confirmation that the same business relationship formed by it exists, and then the lawsuit was changed in exchange for seeking a settlement amount, etc. under the premise that the business contract of this case was terminated in the first instance, and the above modification is only a different resolution method in a dispute over the same living or the same economic interest, and thus it cannot be deemed that there is a change in the foundation of the claim, and it cannot be deemed that there is a change in the foundation of the claim, and because most of the previous litigation data can be used to examine the new claim, the above argument by the defendant is not accepted

(b) Claim for settlement;

1) A summary of issues

The Plaintiff asserted that the instant agreement was effective and continued, but the agreement was terminated at the end of December 2009, and sought compensation for damages arising from the distribution of gains from the operation of the instant agreement, the distribution of residual assets after the operation of the instant agreement, and the violation of the agreement on the operation of the instant agreement against the Defendant. However, as the instant claim for settlement of damages is premised on the premise that the instant agreement on the operation of the instant agreement was effective, first of all, the instant agreement on the operation of the instant agreement should be examined.

2) Relevant provisions of Certified Public Accountant Act

Article 12(2) of the Certified Public Accountant Act with respect to the instant trade agreement provides that no more than two offices shall be established as follows, and Article 22(1) of the same Act prohibiting the name lending to another person (hereinafter referred to as the “instant provision” is added to the foregoing provisions).

(3) A person who falls under any of the following subparagraphs as a certified public accountant shall be punished by imprisonment for not more than one year or by a fine not exceeding five million won. 2. A person who has allowed another person to use his/her name or trade name or has lent his/her certificate of registration to another person in violation of Article 12 (1). (6) A person who has established two or more offices in violation of Article 12 (2) shall be punished by a fine not exceeding three million won.

3) Whether the instant provision is mandatory

(6) The purpose of the Certified Public Accountants Act is to ensure the protection of the rights and interests of citizens, the sound management of enterprises, and the development of the national economy (Article 1); (2) to achieve the purpose of the system and the qualifications for certified public accountants, a person other than certified public accountants is prohibited from using the name of "certified public accountant" or any other similar name; and (3) to impose criminal punishment on a certified public accountant (Articles 11, 50, 54 (1) and (2)). 2 or more offices are prohibited from being placed under any pretext; and (4) to impose criminal punishment on a certified public accountant (Articles 12 (2) and 53 (6) 1); and (2) to prevent such acts from being carried out by a person who violates the provisions of Article 20 or more offices of the former Medical Service Act (see Articles 22 (1) and 53 (3) and (5) of the same Act, and thus, to protect the rights and interests of the certified public accountant and interests of the company from being put into practice of the Korean public (see Article 20).

4) Whether the instant partnership agreement is null and void in violation of the instant provision

A) Whether the Certified Public Accountant Act violated is an ex officio investigation

In relation to the Plaintiff’s claim for the settlement of accounts of this case, the Defendant asserted that even though the Defendant did not reach a stimul and bypass in the final summary brief received on July 2, 2014, the instant trade agreement violates the instant provision, as seen above, and as such, the instant provision is a mandatory provision, the court may determine ex officio the claim even if there is no party’s assertion (see Supreme Court Decisions 94Da42129, Dec. 22, 1995; 88Da17181, Sept. 29, 198).

B) The purport of the instant provision and relevant legal principles

Article 12(2) of the Certified Public Accountant Act limits the number of offices that a certified public accountant can establish to one place. The purpose of Article 12(2) is to prevent a certified public accountant from being managed by a person, other than a certified public accountant, in advance, by allowing a certified public accountant to establish a certified public accountant office only within the scope of a place where he/she may directly perform his/her duties, such as accounting and tax agency services, etc.

Therefore, it cannot be deemed that a certified public accountant who opens an office in his name and directly takes part in the management of a newly established office, such as opening another office in the name of another certified public accountant, employing his employees, paying wages, and taking profits from such business, etc. However, the registration certificate of another certified public accountant cannot be deemed to have been leased and actually established a separate office. However, even if another certified public accountant who is the title holder of the newly established office directly performs part of his duties at the office that he newly established, the above certified public accountant who already established an office in his name constitutes a case where the newly established office was established in duplicate office (see Supreme Court Decisions 9Do1519, Oct. 27, 1998; 9Do1519, Jan. 18, 200; 203Do256, Oct. 23, 2003).

Meanwhile, Article 22(1) of the Certified Public Accountant Act provides that "no person shall perform the duties under Article 2 by using his/her name or trade name or lend his/her registration certificate to any third person." "other person" includes not only a person who is not qualified as a certified public accountant but also a person who is qualified as a certified public accountant (see Supreme Court Decision 200Do1408 delivered on June 27, 200).

5) Determination

In light of the above facts and the purport of the entire arguments, the plaintiff and the defendant operating the office of this case as a certified public accountant and operated the office of this case through the non-party 1 on the ground that the non-qualified non-party 1, who is qualified to operate the office of this case, operates the office of this case as a business agent. The defendant provided the qualification of certified public accountant necessary for the operation of the office of this case, and decided to conduct an audit on the settlement of accounts without participating in the operation of the office of this case. The defendant did not participate in the operation of the office of this case before attending the office of this case on February 2, 200, but was engaged in the operation of the office of this case, while participating in the operation of the office of this case and operated the office jointly with the plaintiff or non-party 1. In light of the above legal principles, the contract of this case is already managed and operated under the lead of the office of this case on the ground that the plaintiff, who is qualified to operate the office of this case, was not qualified to own the plaintiff's office of this case.

Therefore, it is reasonable to deem the instant agreement to be null and void as a juristic act in violation of the provisions of this case, which is a mandatory law. Thus, the instant agreement on the same business is valid, and there is no reason to further determine the remainder of the claim for the settlement of accounts in the instant case, which is seeking compensation for damages arising from the distribution of gains from the same business, distribution of residual assets related to the same business, and violation of the agreement on the business.

B. Claim for loan

According to Gap evidence No. 28-1 (the balance sheet as of August 31, 200), Gap evidence No. 29-1, Eul evidence No. 45-2 (the account head, short-term loans), Eul evidence No. 46-2 (the account head, short-term loans), Eul evidence No. 9-2 (the account head, No. 46), Eul evidence No. 9-2 (the account head, short-term loans), and Eul evidence No. 9-2 (the other evidence No. 45-9, No. 10), which are hard to find as evidence for the plaintiff No. 9-1 to 8-2, and the other evidence No. 9-2, which are evidence No. 1 to find as evidence of Gap evidence No. 2, the remaining evidence No. 9-2, and the other evidence No. 9-2, the remaining evidence No.

Therefore, there is no reason for the Plaintiff’s claim for the instant loan.

4. Conclusion

Therefore, the judgment of the court of first instance was invalidated by an exchange and modification of the plaintiff's claim at the trial, and all of the plaintiff's claims in this case that were changed in exchange in the trial at the trial is dismissed. It is so decided as per Disposition by the assent of all.

Judges Lee Jong-sung (Presiding Judge)