A. The case holding that a statutory credit relationship between A and A was established between A and A, in case where: (a) although A was newly established in accordance with a separate procedure after the dissolution of B and B; (b) A entered into a contract for delegation of affairs of B and a contract for payment of fees for an association agency; and (c) A has gained legal effects and economic benefits; and (d) A has

A Where a union was newly established in accordance with a separate procedure after the dissolution of a union B, but a party entered into an agreement for delegation of affairs of a union and for payment of fees for an agency with a union was actually acting for the union B, and the legal effect and economic interest of a union was gained, the case holding that a legal claim relationship between A and A was established in accordance with the management of affairs, on the grounds that: (a) it can be recognized that a union was deemed to have succeeded to the above agreement entered into between A and A in the same manner as a union, or that at least A has performed management of affairs of a union for the purpose of A without any legal obligation for expectation and payment of remuneration for concluding a new delegation contract with a

Articles 734 and 739(1) of the Civil Act, Article 61 of the Commercial Act

Supreme Court Decision 2007Da55477 Decided January 14, 2010 (Gong2010Sang, 309)

Changwon District Housing Association (LLC, Kim & Lee LLC, Attorneys Choi Byung-ho et al., Counsel for the defendant-appellant)

American Industrial Development Co., Ltd. (Law Firm Inulul, Attorneys Lee Jae-woo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2008Na115828 decided November 11, 2009

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

After compiling the adopted evidence, the court below acknowledged the facts as stated in its holding, and determined that, in light of the following: (a) the Plaintiff’s association was dissolved and newly established pursuant to a separate procedure to authorize the establishment of a new association; (b) the name of the association; (c) the rules of the association; and (d) the composition of the association; and (e) the Plaintiff’s association shall be deemed a separate non-corporate body with different legal personality; and (e) there is no evidence to prove that the Plaintiff’s association succeeded to the delegation contract for the affairs of the association and the payment agreement for the fees for the association agency (hereinafter “instant agreement”) concluded between the Plaintiff and the Defendant through a general meeting resolution stipulated in the union agreement, the instant agreement shall not be effective against the Plaintiff; and (b) the Defendant paid the fees for the association agent received from the Plaintiff

Examining the adopted evidence by the court below in light of the records, the judgment of the court below that held that the plaintiff union did not succeed to the rights and obligations of the former union under the agreement of this case after premised on the premise that the former union was a separate non-corporate body of the non-corporate body of the plaintiff union. However, it is hard to accept the conclusion that the court below concluded that the defendant was paid the fees from the plaintiff union for acting as an agent without any

According to the evidence and facts rejected by the lower court, the Defendant actually and vicariously performed the affairs of the Plaintiff Union on August 16, 2006, and the Plaintiff Union also had a legal effect and economic interest, such as conducting the instant apartment construction and sales business based on the business affairs of the Plaintiff Union, before requesting the Defendant to suspend the vicarious performance of the affairs of the Plaintiff Union in the form of a notice of termination on August 16, 2006. If such circumstances exist, it is sufficient to deem that the Plaintiff Union is deemed to have succeeded to the instant agreement concluded between the Plaintiff Union and the Defendant on the same basis as the former Union and the entity, or that it has performed the affairs of the Plaintiff Union on behalf of the Plaintiff Union without any legal obligation for the expectation of the conclusion of the delegation contract between the Plaintiff Union and the Defendant and for the purpose of receiving remuneration (see, e.g., Supreme Court Decision 2007Da5477, Jan. 14, 2010).

Therefore, the court below should have determined whether the defendant should return the fees already paid by the plaintiff union and the scope of its return, after examining the following: (a) the content of the business affairs of the union that the defendant had handled by the defendant, the scope of the defendant's right to demand reimbursement of necessary or beneficial expenses to the plaintiff union within the extent of handling the business affairs of the union; (b) the level of ordinary remuneration that the defendant, a merchant, can claim for necessary or beneficial expenses by performing the business affairs of the union as part of the business affairs of the union; and (c) the defendant breached his/her duty in the course of performing the business affairs of the union and thereby bears liability for damages.

Nevertheless, the lower court determined that the Defendant was unjust enrichment on the ground that the Plaintiff Union did not succeed to the instant agreement, thereby adversely affecting the conclusion of the judgment by misapprehending the legal doctrine on unjust enrichment.

The ground of appeal pointing this out is with merit.

2. As to the grounds of appeal Nos. 2 and 3

The defendant asserts that the plaintiff union's payment of the cooperative agency fee to the defendant is a kind of non-payment, and thus cannot claim the return thereof, or that the plaintiff union ratified the agreement of this case between the defendant and the Gu union in light of various circumstances indicated in the record.

However, this is a new fact that was asserted only before the closing of argument in the court of final appeal, and it is apparent in the record that it was not asserted before the closing of argument in the court of final appeal, and it also does not constitute an ex officio investigation. Therefore,

The ground of appeal on this part is without merit.

3. Regarding ground of appeal No. 4

The court shall not recommend the submission of requirements, facts, or methods of attack and defense, which the parties did not assert, or conduct in the examination of evidence, as it violates the principle of pleading (see Supreme Court Decision 91Da35106 delivered on June 9, 192, etc.).

The court below did not err by failing to exhaust all necessary deliberations as to the establishment of debt repayment in this case and the ratification of the Plaintiff Union, as alleged in the grounds of appeal.

The ground of appeal on this part is without merit.

4. Conclusion

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 Yang Chang-soo (Presiding Justice)