2019Da207851 Compensation for damages

Plaintiff

Law Firm LLC et al., Counsel for defendant-appellant

Attorney Cho Yong-il

Defendant

Busan District Court Decision 2018Na47493 Decided January 18, 2019

July 29, 2021

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

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

1. Claim for damages and claim for return of investment amount (ground of appeal Nos. 1 and 2)

The lower court rejected the Plaintiff’s claim for damages and the claim for return of investment money on the ground that it is difficult to recognize that the Defendant had received the investment money by deceiving the Plaintiff or agreed to return the investment money to the Plaintiff

Examining the reasoning of the lower judgment in light of the record, the lower court did not exhaust all necessary deliberations and did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the interpretation of expression

2. Claim for the settlement of accounts following the withdrawal of partnership (Ground of appeal No. 3)

(a) The settlement between the withdrawing partner and the other partner shall be based on the status of union property as at the time of withdrawal (Article 719(1) of the Civil Act);

In the absence of special circumstances, the partnership relationship is terminated when one person withdraws from a partnership comprised of two members, but the partnership shall not be dissolved or liquidated. However, the partnership property belonging to the partnership's joint ownership of the remaining members shall be calculated upon withdrawal between the withdrawing partner and the remaining member (see Supreme Court Decision 2015Da72385, Dec. 13, 2018).

As a result of calculating the property of an association at the time of withdrawal, a withdrawing member may receive a refund of his/her shares if the property status of the association is not deficited. Therefore, a person who claims the refund of shares is liable to prove the status of the property of the association, except in extenuating circumstances, such as where a separate agreement exists on the method

B. The lower court rejected the Plaintiff’s claim for the settlement of accounts following the Plaintiff’s withdrawal from the association for the following reasons.

The Plaintiff and the Defendant agreed to operate Cambodia-related business in partnership, and this agreement constitutes a partnership agreement under the Civil Act. Upon filing the instant lawsuit, the Plaintiff withdrawn from partnership. In order for the Plaintiff to recover the Plaintiff’s share out of the partnership’s property due to the Plaintiff’s withdrawal, the financial status of the partnership at the time of withdrawal should be determined first, and the Plaintiff is liable to prove this. The evidence submitted by the Plaintiff alone does not specify the size and details of the partnership’s property at the time of withdrawal, and the Defendant cannot be deemed to bear the obligation to settle the Plaintiff’s investment amounting to KRW 170 million

C. Although the reasoning of the lower judgment was inappropriate, in light of the foregoing legal doctrine, the conclusion that the Defendant did not bear an obligation to settle shares upon the withdrawal of an association is justifiable. The lower court did not exhaust all necessary deliberations, but did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on the burden

3. Conclusion

The Plaintiff’s appeal is dismissed as it is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Noh Jeong-hee

Justices Kim Jae-hyung

Justices Ansan-chul

Justices Lee Dong-gu