[1] In a case where a general partner lost the property of the partnership, whether a partner can claim damages on the part of an individual who is not a member of the partnership (negative)

[2] Whether a voluntary lawsuit trust with respect to the property of an association against a general partner is a trust (affirmative)

[1] If a partner who executes the business affairs of a cooperative provided the property of the cooperative as a security for personal financing, but caused loss of ownership, it is a partnership that loses the property of the cooperative. Thus, even if the partner lost the share of joint financing for the property, it is nothing more than the loss inflicted upon the partner's status, not as an individual, and it is nothing more than the loss inflicted upon the partner. Thus, the partner who suffered from the loss cannot seek compensation in the status of an individual from the relationship

[2] A general partner who has been granted the authority to execute the partnership affairs is allowed to perform a lawsuit in his/her own name after obtaining a voluntary lawsuit trust from a union member.

[1] Articles 703, 704, and 750 of the Civil Act / [2] Articles 706 and 709 of the Civil Act, Article 80(1) of the Civil Procedure Act, Article 7 of the Trust Act

[1] Supreme Court Decision 94Da52881 delivered on September 20, 1996 (Gong1996Ha, 3101) / [2] Supreme Court Decision 83Meu1815 delivered on February 14, 1984 (Gong1984, 508)

Plaintiff 1 and four others (Attorney Seo-sik, Counsel for the plaintiff-appellant)

Defendant (Attorney Lee Byung-chul, Counsel for the defendant-appellant)

Seoul High Court Decision 94Na9872 delivered on July 7, 1995

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

We examine the grounds of appeal.

1. Regarding incomplete deliberation on the establishment of the association agreement, misconception of facts against the rules of evidence, and misapprehension of legal principles as to the association agreement

A. Summary of fact-finding and judgment of the court below

According to the reasoning of the judgment below, at the same time, the non-party 1 and the non-party 2, including the plaintiff 1 and the non-party 6, purchased the portion of the land owned by the government around 1966, and the non-party 1 and the non-party 2, including the non-party 1 and the non-party 6, purchased the ownership transfer registration under the name of the non-party 1 and the non-party 6, which were owned by the non-party 1 and the non-party 1 and were owned by the non-party 6. The non-party 2, including the non-party 1 and the non-party 1, were not entitled to the non-party 6's share transfer registration under the name of the non-party 1 and the non-party 6's non-party 1 and the non-party 2, who were entitled to the non-party 6's share transfer registration under the non-party 1 and the non-party 2, the non-party 1 and the non-party 3, the non-party 1 and the non-party 6.

In addition, based on these factual relations, the court below held that 16 members including the plaintiff et al. acquired de facto share ownership of the shares of this case at each specific rate. On the other hand, since the shares acquired by 16 members including the plaintiff et al. are practically impossible to construct commercial buildings on the ground, 16 members including the plaintiff et al. mutually invest their own share rights in the land, and agreed to operate joint businesses of constructing commercial buildings on the land group with the consent of the remaining owners of the land of this case. As part of providing a group of land, 16 members including the plaintiff et al. entered into a construction agreement with the defendant for joint businesses and completed the registration of ownership transfer under the name of the defendant's sole title trust instead of providing the land, the plaintiffs et al. did not bear the same amount of obligations as the plaintiff et al. to the non-party 16 members including the plaintiff et al., and the plaintiff et al. were jointly liable for the same amount of obligations as the plaintiff et al.'s 16 members including the plaintiff et al.

B. The judgment of this Court

However, the part that the court below recognized that 16 persons including the plaintiff et al. entered into the association agreement and that the lawsuit of this case was unlawful due to the lack of standing to be a party is difficult to accept

According to Gap evidence Nos. 2, 3, 4, 6-1, 2, 7, 8, 9-10 and 11, it can be acknowledged that the plaintiff et al., who is the actual owner of the share in this case, has agreed to pay 50,00,00 won to the non-party 3 on April 29, 1987, and that the 16-party, et al., including the plaintiff et al., would receive the ownership transfer of the share in this case after attracting capital to the plaintiff 1 and newly constructing the building adjacent to the land in this case and distributing part of the building in this case to the non-party 2 and the non-party 3's claim for cancellation of the ownership transfer registration. However, it cannot be found that the plaintiff et al. and the non-party 3 agreed to receive the ownership transfer of the share in this case.

Nevertheless, the court below erred by misapprehending the legal principles that the court below determined Plaintiff 1 as a manager in order to achieve the common purpose of the building of a commercial building and concluded a partnership agreement with the contents that run a joint business that intends to build a commercial building on the land of this case by jointly bearing each share of the land of this case with the mutual debt. Based on such erroneous facts, the damages claim against the defendant by the 16 persons, including the plaintiff, etc. belongs to the quasi-joint liability of 16 persons, including the plaintiff, etc., and the lawsuit concerning the property shall be filed jointly as an inherent necessary co-litigation, and only six of them shall be filed jointly by all the members of the association, and it is unlawful to determine that the lawsuit of this case, which was filed by only six of them, is unlawful as the lack of the standing (the claim of the plaintiff of this case is not premised on the fact that it is a partnership claim).

However, comprehensively taking account of the purport of evidence Nos. 1, 5-1, 2, 3, and 1-1 of the above evidence No. 1, Plaintiff 1 received gold 50,000 won from the Defendant and Nonparty 5 on April 24, 1987, and paid it to Nonparty 3 on the same day under the name of Nonparty 5, and 16 members including the Plaintiff, etc. were paid in the name of Defendant and Nonparty 5 on June 26, 1987 for the registration of ownership transfer under the name of Defendant 1 and Nonparty 6 on the same name. The remaining land owned by Nonparty 1 and its neighboring owners were not owned by Nonparty 5 on the condition that the ownership transfer was registered under the name of Nonparty 1 and Nonparty 5, and the Defendant did not own the remaining land under the name of Defendant 1 and Nonparty 5 on the condition that it was registered under the name of Defendant 1 and Nonparty 1 were sold on the same date on the 5th anniversary of its own land.

On June 26, 1987, 16 of the plaintiff et al., 16 of the plaintiff et al. invested 16 of the plaintiff et al. in the share of this case on their own between the defendant and the non-party 5. The defendant and the non-party 5 invested 50,000,000 funds and construction expenses paid to the non-party 3 and distributed 50% of the investment area of each of the land of this case and the non-party 16 of the above ground level and the non-party 5 of the above ground level to the owners of the land of this case, the non-party 16 of the above ground level and the non-party 5 of the above ground level to the non-party 16 of the above ground level and the non-party 5 of the non-party 5, and the non-party 5 of the non-party 6 of the non-party 6 of the union as a general partner for the execution of the non-party 5's new building.

In addition, in a case where a partner who executes the business affairs of a cooperative, such as the defendant, provided the property of a cooperative as a security for personal financing, but caused loss of ownership, it is a partnership that loses the property of a cooperative. Thus, even if a partner lost the joint financing of the property, it is not an individual but an damage incurred to the partner's status. Thus, the partner who suffered damage cannot seek compensation in the status of an individual out of the partnership relationship (see Supreme Court Decision 94Da52881 delivered on September 20, 196).

However, according to the records, the plaintiffs suffered damages from the loss of their respective shares in the land of this case due to the violation of the defendant's agreement in the lawsuit of this case, and seek compensation for damages equivalent to the market price of each share to the defendant as a member's individual status. Thus, the plaintiffs' claims should be rejected again because they are without merit.

2. Regarding the exercise of union claims by a general partner of the partnership, the incomplete hearing, and the non-exercise of a right to know

According to the records, in order to prepare the site for the commercial building, the plaintiff 1 filed a joint purchase application for the building consent of other merchants and the neighboring state-owned land of this case, while the defendant made efforts to raise the building fund, and the other union members are aware of the fact that they have allowed it. Thus, it shall be deemed that the union members implicitly set the plaintiff 1 and the defendant as the manager of the union.

In addition, the executive member who has been granted the authority to execute the affairs of the partnership shall be allowed to perform the lawsuit in his/her own name with the trust of voluntary lawsuit from the union members (see Supreme Court Decision 83Meu1815, Feb. 14, 1984). However, since it is apparent in the record that the plaintiff 1 does not exercise the union's claims against the defendant as an executive member in the lawsuit of this case, it is not an exercise of the union's claims against the defendant as an executive member in the lawsuit of this case, but is seeking compensation for damages equivalent to the shares he/she has invested with other union members as an individual member, even though the court below did not examine whether the plaintiff 1 exercises the union's claims as executive member

3. As to the act of preserving combined articles

The plaintiffs suffered losses from loss of their respective shares in the land of this case due to the violation of the contract by the defendant, and cannot be deemed as the act of preserving partnership property, which is a combination property, in which the defendant is entitled to damages equivalent to the market price of each share in the land of this case as an individual member. Thus, the judgment of the court below is erroneous in the misapprehension of legal principles as to the act of preserving

4. Therefore, all of the plaintiffs' claims in this case shall be dismissed without merit. While the court below did not dismiss the claims and did not dismiss the lawsuit, only the plaintiffs cannot reverse the judgment of the court below and render a judgment unfavorable to the plaintiffs. Thus, all of the plaintiffs' appeals are dismissed, and the costs of appeal are assessed against the losing parties. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Chang-hun (Presiding Justice)