[1] Whether a cooperative can be deemed to meet the requirements for establishment only by promoting the achievement of common objectives (negative)

[2] In a case where Gap running a restaurant took over the goods payment obligation of the former operator Eul to Eul corporation, but Gap's wife who lent the name of business registration and deposit account to Gap's restaurant operation business was jointly and severally liable as a member, the case holding that Byung provided his own labor for restaurant operation in light of all circumstances, and Byung and Byung operated a restaurant with a view to achieving the common purpose of securing expenses necessary for community life as a couple, the judgment below held that Byung's relation constitutes a partnership under the Civil Act which operates a restaurant as a kind of business

[1] Article 703 of the Civil Code / [2] Article 703 of the Civil Code, Article 57 (1) of the Commercial Code

[1] Supreme Court Decision 2011Da8005 Decided August 17, 2012

Daejin Trade Co., Ltd. (Law Firm Shinsung, Attorneys Seo Jin-jin et al., Counsel for the plaintiff-appellant)

Defendant (Appointed Party) (Law Firm Geumhae, Attorneys Jung-young et al., Counsel for the defendant-appointed Party-appellant)

Busan District Court Decision 2013Na15828 Decided September 26, 2014

The part of the judgment of the court below against the Appointor 2 is reversed, and that part of the case is remanded to Busan District Court. The remaining appeal is dismissed. The costs of appeal except for the part due to the Appointor 2 are assessed against the defendant (Appointed Party).

The grounds of appeal are examined.

1. The part concerning the defendant (appointed party, hereinafter "the defendant")

The court below accepted the plaintiff's claim on the ground that the defendant accepted the debt of this case against the plaintiff by the former operator of the restaurant of this case, and that "the plaintiff claims against the former operator if the defendant did not pay the price" was stated in the debt acquisition document of this case, but it is reasonable to interpret that the non-party who is the former operator is jointly liable for the payment of the price of this case to the plaintiff, and it is not sufficient to recognize that the defendant's debt against the plaintiff was not nonexistent or extinguished by the above contents alone.

In light of the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on the interpretation of a disposition document or the assumption of an obligation, contrary to what is alleged in the grounds of appeal.

2. The part concerning the selected person 2

A. The partnership agreement under the Civil Act is a contract under which two or more persons mutually invest to jointly operate a business (Article 703 of the Civil Act), and it can be deemed that the partnership agreement is limited to the agreement that jointly runs a specific business, and thus, it cannot be deemed that the agreement satisfies the requirements for establishment of the partnership solely on the ground that it seeks to achieve a common purpose (see, e.g., Supreme Court Decision 2011Da8005, Aug. 17, 2012)

B. The court below acknowledged that two persons who are the Defendant’s wife (hereinafter “designated persons”) were to stay in the restaurant of this case beyond simply lending the Defendant’s name of business registration and deposit account in the restaurant of this case, and play a leading role in the operation and fund management of the restaurant of this case, and determined that the relationship between the Defendant and the designated persons constitutes a partnership operating the restaurant of this case as a partnership business, and that the Defendant entered into a contract to assume the obligation of this case as an operating agent of the association of this case, and thus, the Defendant was to jointly and severally liable for the payment of the goods price liability of this case to be taken over by all members pursuant to Article 57(1) of the Commercial Act.

C. However, the designated parties asserted that the Defendant, her husband, was merely running the restaurant of this case. Even based on the facts acknowledged by the court below, the designated parties provided their labor for the operation of the restaurant of this case, and only can it be known that the Defendant and the designated parties operated the restaurant of this case at the same time in order to achieve the common purpose of raising expenses necessary for community life as the husband and wife. On the other hand, the court below should have determined whether the relation between the Defendant and the designated parties constitutes a partnership operating the restaurant of this case by exercising the rights of members with respect to the distribution of remaining property when the designated parties intended to achieve the common purpose of raising expenses necessary for the restaurant operation business of this case and other property value in accordance with the association agreement concluded with the Defendant.

Nevertheless, without examining these circumstances, the lower court determined that the relationship with the Defendant constitutes a partnership under the Civil Act on the sole ground as seen earlier. In so doing, it erred by misapprehending the legal doctrine on the requirements for establishment of a partnership under the Civil Act, thereby failing to exhaust all necessary deliberations.

3. Conclusion

Therefore, the part of the judgment of the court below against the Appointor shall be reversed, and that part of the case shall be remanded to the court below for a new trial and determination. The remaining appeal shall be dismissed, and the costs of the appeal except for the part relating to the Appointor shall be borne by the defendant. It is so decided as per Disposition by

[Attachment] List of Appointeds: Omitted

Justices Lee Ki-taik (Presiding Justice)