[1] In a case where Party A, among co-inheritors, claimed a part of the litigation costs against Party B, who is another co-inheritors on the ground that the costs of the lawsuit in the case, such as the division of inherited property, had been paid by the co-inheritors, the case holding that the judgment of the court below which dismissed Party A’s claim based on the fact that Party B did not assert that the co-inheritors had a partnership relationship, and thereby violated the principle of pleading

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

[3] In a case where a part of co-inheritors did not reach an agreement on the division of inherited property and paid a large amount of inheritance tax without a consultation on the division of inherited property, and a resolution on the appointment of Gap et al. as an administrator temporarily for the management of real estate belonging to inherited property until the agreement on the division of inherited property was reached, and where a mutual agreement on the division of inherited property is reached by paying inheritance tax through some co-inheritors and a loan on the security of real estate belonging to inherited property, the case holding that the court below erred by misapprehending legal principles in holding that certain co-inheritors including Gap et al. were in a partnership relationship, even though the parties to the above resolution

[1] Article 203 of the Civil Procedure Act / [2] Article 703 of the Civil Act / [3] Article 703 of the Civil Act

[2] Supreme Court Decision 2010Da51369 Decided October 28, 2010

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

Defendant (Bae, Kim & Lee LLC, Attorneys Ahn Young-soo et al., Counsel for the defendant-appellant)

Seoul Central District Court Decision 2011Na5096 Decided August 18, 2011

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The lower court determined as follows and dismissed the Plaintiff’s claim on the ground of the instant claim that the Defendant, a co-inheritors, also bears part of the co-inheritors, as one of the co-inheritors who inherited the property upon the death of Nonparty 1, a Plaintiff’s death, incurred litigation costs, such as the division of inherited property.

According to the resolution and agreement of this case, co-inheritors who are the parties concerned were in a partnership relationship under the Civil Act with the purpose of smooth management of inherited property and appropriate payment of inheritance tax. Moreover, the plaintiff is obligated to spend expenses necessary for the execution of the business as an executive member of the above partnership. However, since the execution of the case, such as the division of inherited property, claimed by the plaintiff constitutes the execution of the partnership business, the plaintiff is obligated to spend expenses incidental thereto, but it is only possible to seek settlement according to the resolution

2. However, we cannot agree with the judgment of the court below for the following reasons.

A. According to the records, as to the cause of the instant claim, the Defendant only made an assertion that the Plaintiff did not have a right to indemnity against the Plaintiff by paying the instant litigation costs with the rental proceeds of the real estate that belongs to the inherited property, not with its own funds, and did not assert that the parties to the instant resolution or agreement or the co-inheritors of the instant case have a partnership relationship or have a partnership relationship, and did not submit any evidence, and the Plaintiff did not object to such assertion or submit relevant materials.

Nevertheless, the judgment of the court below that recognized partnership relations which the defendant did not assert and dismissed the plaintiff's claim is erroneous in the misapprehension of the principle of pleading, which affected the conclusion of the judgment. The grounds for appeal pointing this out

B. Meanwhile, the agreement under the Civil Act is a contract under which two or more persons mutually invest to jointly operate a business, and it can be deemed that the agreement is limited to the agreement under which they jointly operate a specific business, and it does not meet the requirements for establishment of the association only with the intent to achieve a common purpose (see Supreme Court Decision 2010Da51369, Oct. 28, 2010, etc.).

According to the records, when part of the above non-party 1's co-inheritors are liable to pay a large amount of inheritance tax without an agreement on the division of inherited property, the resolution of this case (Evidence 1) and the agreement of this case (Evidence 4 of this case) are made. The resolution of this case is made with the main contents that the parties appoint temporarily the plaintiff and the non-party 3 as the administrator for the management of the real estate belonging to the inherited property until the parties reach an agreement on the division of inherited property. Further, the agreement of this case as to the non-party 2, non-party 3, and the plaintiff among co-inheritors, contribute to the amount of KRW 350 million each by the co-inheritors, and pays the secured loan by the real estate belonging to the inherited property or the inheritance tax imposed by the sale thereof, but if the agreement on the division of inherited property is divided, it is made with the main

Examining the aforementioned resolution and agreement in light of the developments leading up to the resolution and agreement and the details thereof, each of the parties is merely a resolution and agreement in this case in order to achieve the common purpose of the management of real estate belonging to inherited property or the payment of inheritance tax, and it is difficult to view that each of the parties agreed to operate a business jointly by mutual investment in excess of this common purpose. Therefore, according to the legal principles as seen earlier, each of

Nevertheless, the judgment of the court below which held that certain co-inheritors, including the plaintiff and the defendant, are in partnership relations, is erroneous in the misapprehension of legal principles as to the requirements for establishment of partnership, which affected the conclusion of the judgment

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)