In a lawsuit seeking the payment of the same business settlement amount, the case holding that the judgment below erred by violating the disposition authority principle, ordering the payment of the amount exceeding the scope of the plaintiff's claim.

Article 724 of the Civil Act, Article 203 of the Civil Procedure Act

Plaintiff (Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)

Defendant 1 and one other (Attorney Lee Jae-soo, Counsel for the defendant-appellant)

Daejeon High Court Decision 2007Na9472 Decided August 28, 2008

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

According to the reasoning of the judgment below, the court below held that the total amount of the business accounts that the Defendants are liable to return to the Plaintiff is KRW 67,254,533, and ordered the Defendants to pay each of the same business accounts and damages for delay on the ground that the obligations to return the business accounts are installment obligations. The court below ordered the Defendants to pay each of the above 33,627,267 won (=67,254,533 won x 1/2), and separately ordered Defendant 1 to pay the loans 13,00,000 won and damages for delay.

However, according to the records, the plaintiff asserted in the court below that the total amount of the union business accounts that the defendants are liable to pay to the plaintiff is 50,381,800 won and damages for delay are jointly and severally claimed against the defendants to pay the above union business accounts amounting to 50,381,800 won and damages for delay. In addition, with respect to the defendant 1, it is evident that the court below ordered each payment to the defendants, the total amount of the union business accounts amounting to 67,254,533 won exceeds 50,381,80 won and damages for delay. Thus, the court below erred in the misapprehension of the principle of disposition and affected the conclusion of the judgment, and the ground of appeal pointing this out is with merit.

2. Regarding ground of appeal No. 2

According to the reasoning of the judgment below, the court below, based on the adopted evidence, concluded a partnership business agreement with Defendant 1 on May 2004 with the purport that the plaintiff jointly purchased shares of 1/2 of the site 214-9 of the Sung-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri (hereinafter referred to as "sexually-ri-si site") and created it as a site and sold it and distributed profits in 1/2. On October 2004, the plaintiff again purchased the land from the defendants and developed it as a site for common house (hereinafter referred to as "the land of this case"), and then divided and sold it in majority, and concluded the partnership business agreement of this case with the plaintiff and the defendants to distribute profits to 1/3 each. In light of the records, the court below's findings of fact and judgment are justified, and there is no violation of the rules of evidence or incomplete deliberation as otherwise alleged in the ground for appeal.

3. As to grounds of appeal Nos. 3 and 4

According to the reasoning of the judgment below, the court below presumed that the Plaintiff’s investment amount of 4,381,800 won and Defendant 1’s investment amount of 40,000 won with respect to the settlement of the loan amount of 30,000 won and 40,000 won are 30,000 won and 352,00,000 won with respect to the loan amount of 30,000 won and 30,000 won with respect to the loan amount of 30,000 won and 30,000 won with respect to the loan amount of 30,000 won and 30,000 won with respect to the loan amount of 30,000 won and 30,000 won with respect to the loan amount of 30,000 won and 30,000 won with respect to the loan amount of 30,000 won and 307,000 won with respect to the above remaining property amount of 138,206308.

However, such determination by the lower court is difficult to accept in light of the following circumstances, which can be known by the records of the instant case.

First of all, the court below calculated the amount of settlement of accounts as above on the premise that the Plaintiff’s share 36,00,000, total of Defendant 1’s share 40,000,000, total of Defendant 1’s share 76,000,000 among the amount of trade funds related to the purchase of the instant land in Sungcheon site located in the bank account under the Plaintiff’s name was remitted to Nonparty 3, but the above amount of settlement of accounts was calculated as above, however, in the specification table of transactions (Evidence No. 6-5) of the said account, other than the above amount of KRW 76,00,000,00 as well as the above amount of KRW 76,00,000 was remitted to Nonparty 3, under the premise that the amount was actually transferred to Nonparty 1’s seller of the instant land, and there is more room to view Defendant 1 as the Plaintiff’s share of KRW 30,000,000 as the Plaintiff’s share in the statement that it was transferred to Nonparty 201.

Next, in the application for the alteration of the lawsuit filed by May 23, 2008 at the lower court, the Plaintiff stated that “the purchase cost of the instant rooftop land was KRW 184,00,000,000, and the total expenses, such as construction cost and other incidental expenses, were required to be KRW 60,000 (the maximum amount under evidence submitted by the Defendant).” However, in calculating the net income that serves as the basis for calculating the amount of the settlement of the business partnership of the instant case, the lower court can be deemed to have calculated the excessive net income by not deducting the total expenses of the said construction cost, etc. recognized by the Plaintiff.

또한, 이 사건 대여금 13,000,000원 부분은 원심에 이르러 2008. 5. 23.자 소변경신청서를 통하여 비로소 주장된 것인데, 원심이 인정한 바와 같이 13,000,000원이 위 계좌에서 송금된 것은 사실이나, 우선 위 계좌는 원고와 피고들이 장기간에 걸쳐 동업자금을 함께 관리해 왔던 것으로서 수차례에 걸친 토지 매입과 관련된 자금들이 빈번하게 입·출금되었기 때문에 어느 한 송금액이 이 사건 동업계약과 상관없는 별개의 대여금인지 여부를 쉽게 알기 어려운 점, 위 거래내역표에 의하면 소외 1 명의로 2004. 11. 2. 위 계좌에 1,500,000원이 송금되기도 하였던 점, 소외 2 명의의 확인서(갑 제20호증)에도 피고 1이 옥천 땅을 샀다고 하면서 10,000,000원을 빌려달라고 하여 이를 빌려주었다고 기재되어 있어 위 돈은 다른 출자액과 마찬가지로 정산과정을 거쳐야 하는 동업자금일 가능성이 있는 점 등에 비추어 보면, 위 13,000,000원이 대여금인지 여부는 다른 입·출금 내역과 정산 내용이 충분히 확인된 후에야 판단할 수 있을 것인바, 원고 제출의 자료들만으로 위 13,000,000원이 피고 1에 대한 대여금이라고 단정하기는 어렵다.

Therefore, as seen above, the judgment of the court below that ordered the settlement of accounts for the partnership business and the payment of loans is erroneous by violating the rules of evidence or not conducting deliberation, which affected the conclusion of the judgment. Thus, the ground of appeal pointing this out has merit.

4. Conclusion

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

Justices Park Si-hwan (Presiding Justice)