A company in the process of incorporation, for which the promoters acquired prior to the incorporation, and the relationship of attribution of the rights and duties acquired by the promoters and the requirements for liabilities borne under the name of the promoters

Article 172 of the Commercial Act

Supreme Court Decision 90Nu2536 delivered on December 26, 1990 (Gong1991, 660) Supreme Court Decision 93Da50215 delivered on January 28, 1994 (Gong1994Sang, 830) Supreme Court Decision 97Da56020 Delivered on May 12, 1998 (Gong198Sang, 1611)

Plaintiff (Law Firm continental, Attorneys Jeong Jin-jin et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Gyeong & Yang, Attorneys Park Dong-dong, Counsel for the defendant-appellant)

Seoul High Court Decision 2003Na52755 Delivered on February 17, 2005

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

The court below, based on the evidence presented in its judgment, acknowledged the fact that the defendant obtained a loan of KRW 500 million from a foreign exchange bank on November 28, 2001 and the plaintiff jointly and severally guaranteed it, and rejected the defendant's assertion that the above loan was made pursuant to an agreement between the plaintiff and the defendant to make an investment of KRW 500 million in expenses necessary for the establishment of Norway Co., Ltd. (hereinafter "Mian"), and the defendant only lent the name of the borrower to become a formal principal debtor upon the plaintiff's request, and the actual principal debtor is the plaintiff.

In light of the records, the fact-finding and judgment of the court below are just and acceptable, and there is no violation of the rules of evidence, incomplete hearing, or incomplete reasoning as otherwise alleged in the ground of appeal.

2. Regarding ground of appeal No. 2

The rights and obligations acquired by the promoters prior to the incorporation of a company in the process of incorporation shall be vested in an individual or promoters' association according to specific circumstances (see, e.g., Supreme Court Decisions 90Nu2536, Dec. 26, 1990; 97Da56020, May 12, 1998). In the event that the promoters borrowed money under their individual names, they shall, in principle, belong to the individual of the promoters, and in order to revert the said debt to the promoters' association, the act of borrowing the money shall be conducted on behalf of the promoters' association based on the intent of the partners.

According to the facts established by the court below and the record, since the loans in this case are personal loans provided by the defendant and do not receive loans on behalf of the promoters' association for the establishment of the above old-ages, the plaintiff should exercise the right to indemnity against the defendant, and it is not possible for the above promoters' association to claim indemnity against the defendant.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to omission of judgment or promoters association as otherwise alleged in the ground of appeal.

On the other hand, the argument that the instant loan has to exercise the right to indemnity against the relevant older person, not the defendant, because it was invested in the relevant older person and its assets, cannot be a legitimate ground for appeal, as it was first asserted in the final appeal.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)