Dongil Co., Ltd. (Attorney Lee Yong-sik, Counsel for the plaintiff-appellant)

Law Firm (LLC)

December 16, 2011

Seoul Central District Court Decision 2010Gahap87929 Decided February 9, 2011

1. Revocation of the first instance judgment against the defendant.

2. The plaintiff's claim against the defendant is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant's execution of provisional seizure against the claims listed in the attached Table 2 against the Seoul Central District Court Decision 2009Kadan73108 against Edididididi, Seoul Central District Court Decision 2009Kadan73108, is denied.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

The contents to be explained in this part are as follows: (The main sentence of Article 420 of the Civil Procedure Act).

2. Determination on the claim

A. Summary of the argument

(1) The Plaintiff: The instant contract is a partnership agreement with which the Plaintiff and Culture Daehan jointly intend to jointly hold the instant exhibition. The instant contract is the property of the Plaintiff and Culture Daehan’s association whose members are hyddydydydydydydydydydydydydydydydydydydydydydydydydydydydydydydydydydydydydydydydydydydydydydydydydydydydydydy

(2) The Defendant: (a) the instant contract is a partnership agreement with the Plaintiff and Culture Daehan to jointly hold the instant exhibition; (b) Culture Daehan entered into a contract on the lending of works with Ateex as a manager of the association. Since Culture Daehan delayed the payment of 4,35,000 square meters under the said contract; (c) on April 15, 2009, the amount of money to be paid by Dental is reduced to 2,35,000,000, which is 2.35,000 square meters; (d) for the payment of the said amount, the claim against Daehan against Daehan was transferred to Ateex on April 15, 2009 to the Plaintiff, which is a member of the association, pursuant to Article 709 through 405 of the Commercial Act, even if the Defendant did not specify Daehan as a member of the association. Therefore, the Defendant’s obligation to preserve Daehan’s claim against Daehan, a member of the Association under Article 409 through 405 of the Commercial Act.

B. Whether the Plaintiff and the culture transfer are in a partnership relationship under the Civil Act, and whether the claim against the artificial wave constitutes a partnership claim

The contents to be explained in this part are as 3-A and B-B of the reasoning of the first instance judgment (the main text of Article 420 of the Civil Procedure Act).

C. Whether an architecture company is a partnership creditor

(1) recognised facts

According to the purport of Gap's evidence 16 to 19, Eul's evidence 1 to 8 (including each number) and each of the above 0. Dr. Dr. Dr. Dr. Dr. D. D. D. and D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. and D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. and D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. and D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D. D.................................................................................................................................................

(2) Determination

In relation to the holding of the exhibition of this case, the Plaintiff and Embio divers of culture are in a partnership relationship under the Civil Act with the Plaintiff and Embio divers of culture, which is an essential act to hold the exhibition of this case in the position of the manager of the association, and entered into a work lending contract with Ambio divers of this case. The agreement on April 15, 2009, which was concluded on April 15, 2009, was made for the business of a partnership between Embio divers and Emte divers of the company culture, was made for the business of a partnership, and thus constitutes commercial activity. The member executing the business affairs of the association is presumed to have the authority to act for the principal (Article 709 of the Civil Act). Even if the representative of commercial activity is not indicated, such act is effective for the principal (Article 48 of the Commercial Act). Therefore, the agreement on April 15, 2009 is effective against the Plaintiff and Emivers of culture.

(3) Judgment on the Plaintiff’s assertion

(A) The Plaintiff, while entering into a partnership agreement with ADD on April 15, 200, agreed that "the partnership agreement is based on a work loan agreement entered into with BDDDDDDDDDDDDDDD as to all matters relating to the exhibition, and is entirely responsible for culture and the Plaintiff is not responsible for both contracts." Thus, the Plaintiff’s conclusion of a contract with BDDDD on April 15, 2009 with the content of an unilateral increase of the agreed contract amount cannot be deemed as belonging to the duties of BDDD. Thus, Article 709 of the Civil Act cannot be applied, even if the conclusion of the agreement on April 15, 2009 belongs to the duties of BDDDD, the Plaintiff expressed its intention not to consent to the increase of the contract amount, and the Plaintiff’s assertion that the Plaintiff did not have any authority to 30% of the said agreement between BDDDDDD and the Plaintiff’s representative association did not have any authority to 48% of the said agreement on culture.

As seen earlier, the fact that the Plaintiff and Daehan made an agreement as alleged by the Plaintiff is the same as that of the Plaintiff, but it is merely an internal agreement between the Plaintiff and the Plaintiff, a member of the association, to which they are members of the association. In the position of the manager of the association of this case, culture signed a contract for work lending with Ateex, which is an essential act to hold the exhibition of this case, and was in the position of the manager of the association of this case, and that the agreement was exceeded the scope of duties of Eteex, with an unfair content that unilaterally increases the contract amount as alleged by the Plaintiff, as alleged by the Plaintiff, it is insufficient to recognize only the statement of No. 20 evidence, and there is no other evidence to acknowledge otherwise. Ultimately, the conclusion of the agreement as of April 15, 2009, which was made in relation to the payment of the price under the above contract for work lending, is naturally deemed to fall under the scope of duties of Echidi in culture.

In addition, as seen earlier, there is a part of the agreement dated April 15, 2009 that stipulated that the Plaintiff’s share of the Plaintiff’s personal tex 35.8% is excluded from the share of the Plaintiff’s personal tex as long as an Ateex can receive the agreed amount. However, such circumstance alone clearly expresses the Plaintiff’s intent not to consent to the increase of the contract amount to Ateex as at the time of the agreement on April 15, 2009, or it is insufficient to recognize that Ateex expressed the other party’s intent not to consent to the increase of the contract amount to Ateex, or that Ateex expressed the Plaintiff’s intent not to hold the Plaintiff liable for the partnership relations with the Plaintiff and was an intent not to receive the performance of the culture transfer only without holding the Plaintiff liable for the partnership relations, and there is no other evidence to acknowledge otherwise. In addition, this part of the Plaintiff’s assertion cannot be accepted (in cases of a partnership’s representative, if a legal act constitutes a commercial activity to an association, it did not affect all its partners (see Supreme Court Decision 2009Da. 3008).

(B) In addition, the Plaintiff asserts that the provisional seizure to preserve the partnership claims against all the union members, so the Defendant’s provisional seizure against the cultural transfer only cannot be deemed a provisional seizure to preserve partnership claims.

As seen earlier, the Defendant indicated the debtor's culture only and seized a third-party debtor by twitk. However, in the event that the creditor of a union does not hold joint liability with the partnership property for each partner, but exercises the pertinent claim based on the personal responsibility of each partner, the creditor of a union may file a lawsuit for performance against each partner (Supreme Court Decision 91Da30705 delivered on November 22, 1991). A provisional attachment, which is a preservation act, can be conducted as a provisional attachment. Thus, it is reasonable to view the instant provisional attachment as a provisional attachment to preserve the partnership's claim against Atetex's culture.

Therefore, the plaintiff's above assertion cannot be accepted.

(C) The Plaintiff asserts to the effect that, even if it is assumed that the claim of Rottete company under the agreement made on April 15, 2009 constituted a partnership claim, the original claim of Rottete company was reduced to 235,000, and the penalty for breach of contract made by Rottete company on culture was null and void or reduced. The remaining amount of the claim also did not occur due to the failure to implement the settlement procedure, etc. under the agreement made on April 15, 2009, which is necessary to claim the above claim, the claim for return of unjust enrichment and additional costs was extinguished, or both deducted or offsets the claim for the settlement of unjust enrichment and additional costs, and since the claim of Rottete company was transferred to other companies on April 15, 2009 after the provisional seizure of this case, the claim of Rottete company on April 15, 2009 was extinguished, the defendant's subrogation of the claim of this case cannot be invalidated or invalidated.

In the lawsuit of demurrer against a third party, the argument that the third party has ownership on the object of compulsory execution or has the right to prevent the transfer or delivery of other objects, and the argument on the legality of the execution can not be included. The plaintiff's argument on the legality of the execution is all related to the claim for execution, and it is not reasonable to view the legality of the execution without any need to further examine it.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance against the defendant is unfair, so the defendant's appeal is accepted, and the judgment of the court of first instance is revoked, and the plaintiff's claim against the defendant is dismissed as per Disposition.

[Attachment List omitted]

Judges Yoon Sung (Presiding Judge)