2017Da265112 Return of down payment, etc.

A Stock Company

Attorney Park Jae-hoon, Counsel for the defendant-appellant

B A.

Law Firm Seok, Attorneys Seo-dae et al.

Attorney Park Do-young

Gwangju High Court Decision 2016Na11751 Decided August 30, 2017

2, 2017.12

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

The grounds of appeal are examined.

1. As to the dismissal of the method of offence by actual time limit, the establishment and withdrawal of a cooperative, and the misconception of facts and misapprehension of legal principles regarding the request for dissolution

The lower court determined that an association composed of the members of the Plaintiff and the Defendant was established in accordance with the instant trade agreement, and determined that the said association was dissolved for unavoidable reasons upon the Plaintiff’s request for dissolution on the grounds stated in its reasoning.

Examining the record in accordance with the relevant legal principles, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine regarding the rejection of the method of attacking actual time limit, the establishment of and withdrawal from the association,

2. As to the assertion of mistake of facts and misapprehension of legal principles regarding the refund of contributions

(1) In a case where the partnership is dissolved, unless otherwise agreed by the parties, the remaining assets and their values to be distributed to the partnership members are determined at the time of completion of the liquidation procedure. Therefore, in principle, a claim for distribution of the remaining assets may not be made under the condition that the liquidation procedure is not completed. Provided, That where the partnership’s remaining assets are not treated as the remaining assets and only the distribution of remaining assets remains, each union member may, without undergoing separate liquidation procedures, claim for distribution of the remaining assets to the union members who own the remaining assets

To make a claim for distribution possible, it is necessary to first determine the details of the entire residual assets of a union, the legitimate distribution ratio, and the possession of each member's residual assets (see Supreme Court Decision 2013Da29714, Jun. 11, 2015).

(2) The court below accepted the legal principles of the Supreme Court Decision 98Da5458 Decided March 12, 199, that "if a partner, after one of the parties made an investment in accordance with the agreement, was immediately in a partnership, and thereafter a partner who performed the said investment obligation was in the process of performing the original business by the remaining union members without excluding entirely from the partnership relationship, a claim for dissolution due to unavoidable reasons may be filed, and the partner who performed the investment obligation may seek the return of the amount he/she has invested, as a result of the withdrawal." The court below determined that upon the Plaintiff's claim for the return of the Plaintiff's investment, the Defendant shall return the purchase price and access site purchase price converted into the Plaintiff, and the machinery, equipment, and investment amount disbursed by the Plaintiff after the instant partnership agreement, to the Plaintiff.

(3) However, the lower court’s determination is difficult to accept for the following reasons.

According to the reasoning of the lower judgment, following the conclusion of the instant partnership agreement on August 26, 2014, the Plaintiff paid KRW 408,945,950 in total for the purchase cost, etc. for the vehicle acquired under the name of the Plaintiff and delivered to the Defendant upon the Defendant’s request from September 1, 2014 to February 2, 2015.

According to the above facts, it can be seen that the partnership has maintained the partnership relationship, such as paying related expenses at the request of the defendant for about six months after the establishment of the partnership in accordance with the partnership agreement of this case.

Therefore, the lower court should have deliberated, first of all, on whether there is a separate agreement or a remaining business of the partnership regarding the settlement of the entire residual assets of the partnership, in the absence of any separate agreement or the remaining business of the partnership, and further, on whether the details of the partnership’s residual assets, the reasonable distribution ratio, and the possession of each partner’s residual assets, etc. can be determined, and should have determined whether the Plaintiff may claim for the distribution of the remaining assets against the Defendant. Nevertheless, without examining the aforementioned circumstances, the lower court determined that the Plaintiff could immediately seek for the return of the amount invested by applying the legal doctrine of the instant case, which differs from the foregoing. In so doing, the lower court erred by misapprehending the legal doctrine on the claim for

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 Cho Jae-chul

Justices Go Young-young

Chief Justice Cho Jae-hee

Justices Kim Jong-il