[1] The case holding that the cancellation or cancellation of a contract for a partnership business and the claim for restitution of unjust enrichment or restitution of restitution shall be sought by the declaration of the withdrawal from the partnership business, and the return of the amount of investment arising therefrom

[2] The case holding that it is reasonable to view that the conclusion of a partnership agreement and failure to explain the existence and content of other partnership agreement or investment agreement that cannot be compatible with it is an inevitable reason for other parties to the partnership to withdraw from the partnership

[1] The case holding that the cancellation or cancellation of a partnership agreement and the claim for restitution of unjust enrichment or restitution of restitution therefrom shall be sought as well as the return of the amount of investment due to the declaration of intention to withdraw from the partnership

[2] The case holding that it is reasonable to view that it is inevitable for other parties to a partnership agreement to withdraw from the partnership where the parties to the partnership agreement did not explain the existence and content of other partnership agreement or investment agreement which is incompatible with the contract, on the ground that the parties to the partnership agreement generally acknowledges the wide scope of explanation at the time of conclusion of the contract, and the parties to the partnership agreement should bear the duty of explanation as to the circumstances that are likely to achieve the purpose of the contract or have a significant influence on the decision-making of the other party

[3] The case affirming a claim for refund of the total amount of investments made by a withdrawing partner in a partnership relationship with one of the two partners, on the ground that: (a) immediately a partnership relationship was established after the partner invested in the investment under an agreement; and (b) a partner performing the said investment obligation has been entirely excluded from the partnership relationship; and (c) the other partner has been engaged in the original business by the other partner

[1] Articles 716(2), 719, and 720 of the Civil Act / [2] Article 716(2) of the Civil Act / [3] Article 719 of the Civil Act

Lee Han-hee (Law Firm New Year's Day, Attorneys Sung Sung-Gyeong et al., Counsel for defendant-appellant)

Defendant (Law Firm Sejong, Attorneys Lee Gyeong-hee et al., Counsel for the defendant-appellant)

September 27, 2005

1. The defendant shall pay to the plaintiff 140 million won with 20% interest per annum from October 26, 2004 to the full payment day.

2. The costs of lawsuit shall be borne by the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

The following facts are not disputed between the parties, or are acknowledged in full view of the whole purport of the pleadings in the descriptions of Gap evidence Nos. 1, 2, 3-1, 3-2, 4-1 through 3, 5, 6-1 through 4, 7-1, 2, and 8, and there is no other counter-proof.

A. The plaintiff already made an investment in the defendant's Taekwondo hall and decided to operate the Taekwondo hall to Canadian, and asked the defendant who had already been operating the Taekwondo hall in Canada. In the process, the plaintiff decided to make an investment in the defendant's Taekwondo hall and to serve as the criminal of his seal.

B. Accordingly, around January 2002, the Plaintiff entered into a partnership agreement with the Defendant with the following terms and conditions (hereinafter “instant partnership agreement”) and entered into a contract on May 1, 2002.

C. Foods

In order to jointly distribute profits accruing from the management of the Bara, Won-Ba, Taekwondo Sports Center and the Bagman Marshall Islands, Won and the defendant shall enter into the following contracts with the aim of jointly distributing profits:

① The Plaintiff’s investment of KRW 100,000 in the 1 Taekwondo Chapter, which was established with the Defendant’s funds, in 50:50,000, in profits and expenditures, is divided into 50:0.

② The Defendant provided a painting management method, painting management system, and invested KRW 24,00,00 in the 2 Taekwondo Chapter (hereinafter referred to as “the 2 Taekwondo Chapter”) established by the Defendant’s know-how and experience, and invested KRW 40,000 in the Plaintiff. The Defendant, an employer, has the Plaintiff as an employer, who is an employer, acquire the clicker, and the profit and expenditure are divided into 50:50.

(3) The contract period shall be the siren delivery period.

④ The Defendant, along with the establishment of the Taekwondo Chapter 2, shall implement the promise to acquire the camping expense, to the Plaintiff, and shall faithfully perform the obligation to purchase vehicles and to provide other guarantee services, such as the apartment siren, etc.

(5) The defendant shall, at any time at the request of the plaintiff, report in writing on the matters concerning accounting, management and transactions.

(6) The defendant shall manage the Taekwondo Ground 1 and 2, manage the property, administer all management affairs, such as transactions necessary for painting management and contracts, etc.

(7) The working hours of the plaintiff and the defendant shall be six hours a day and three hours a day other than the other day.

(8) On the title between the plaintiff and the defendant, the defendant shall be in charge, and the plaintiff shall be the criminal in charge.

9. If the Defendant was unable to resolve any person who promised to engage in the commission, the amount remaining after deducting dividends and investments from the Plaintiff’s investment shall be refunded in cash within 30 days from the date on which the cause occurred.

C. From March 8, 2002 to July 31, 2002, the Plaintiff paid 140,000,000 won to the Defendant for an investment under the instant trade agreement.

D. Meanwhile, from December 7, 1999 to August 2002, 15, 2002, he paid 81,066,810 won in total under the name of investment to the Defendant. Accordingly, on January 4, 2002, the Defendant drafted a letter of certification as follows.

C. Foods

1. The 1, 2, of this case established with the funds for twitbles confirm that all the facilities costs and equipment invested in Taekwondo grounds are owned by the twitbles, and the defendant shall not dispose of them without the permission of the twitble species.

(2) Of the revenues of the 1 and 2 Taekwondo grounds, 40% of the net earnings restricted in expenses, such as monthly taxes and personnel expenses, shall be paid to the kins.

(3) The defendant shall report the details of monthly revenue and expenditure to the memorials every three months.

(4) If there is a defendant's default within five years for the period of painting lease, the defendant shall pay twice the investment amount to the stone species as penalty.

5. Upon completion of the payment of the penalty, all rights to the seal affixed thereto shall be acquired by the defendant.

E. Meanwhile, on the other hand, the purport of revoking the Plaintiff’s declaration of intent to the instant trade agreement or seeking the payment of the said investment amounting to KRW 140,00,000 and the damages for delay, on the grounds that the instant trade agreement did not implement a profit distribution under the instant trade agreement, did not report the matters of operation in writing, did not cooperate with the Plaintiff’s acquisition, and did not cooperate with the relevant agreement with the relevant stone type, and the said agreement was written. The duplicate of the instant complaint containing the Plaintiff’s declaration of intent reaches the Defendant on October 25, 2004.

2. Determination:

A. In a partnership relationship with two persons, that is, if one of them withdraws, the partnership relationship is terminated, and the partnership property belonging to the partnership's joint ownership of the remaining union members should be calculated due to the withdrawal from the partner. However, where a partner who has performed the above investment obligation has immediately ceased to be in a partnership relationship after the one of the partners has invested in the investment under the agreement, and the partner who has performed the said investment obligation has performed the original business by the other partners while he was excluding entirely from the partnership relationship, the partner who has performed the said investment obligation can immediately seek payment of the amount he has invested (see Supreme Court Decision 98Da5458 delivered on March 12, 199).

B. The plaintiff's revocation or cancellation of the above partnership agreement and the plaintiff's assertion of restitution of unjust enrichment or restitution of restitution of restitution of unjust enrichment is not just an expression of intent to withdraw from the partnership relationship as above, and a claim for the return of the amount of investment arising therefrom.

Therefore, we first examine the plaintiff's withdrawal from the partnership relationship. In general, a broad duty of explanation is recognized at the time of conclusion of the contract with a special trust relationship between the parties, and the parties to the contract to the partnership should bear the duty of explanation as to the situation that would compromise the purpose of the contract or significantly affect the decision-making of the other party. According to the facts of prior recognition, the defendant confirmed on January 4, 2002 that the facility cost invested in the 1, 2, Taekwondo ground of this case and the whole equipment are owned by the tin class, and the defendant is not disposed of without permission of the tin class, and the defendant is not allowed to dispose of the tin class, and the above agreement was made to pay 40% of the net income such as monthly rent and personnel expenses out of the revenues of each Taekwondo ground of the above 2, which would have reached 0% of the above agreement, and it is sufficient to conclude the contract of this case as an agreement of this case for the partnership or investment contract of this case which could not be compatible with the contract of this case, and the plaintiff's act of deception as to the above 2.

In this regard, the defendant asserts that the certificate is a security for the existing debt, and that the defendant fulfilled all the obligations to pay for the kind of stone after the conclusion of the business partnership agreement of this case. However, this fact alone cannot be exempted from the defendant's duty of explanation recognized as above. Furthermore, unless the defendant proves that the certificate of the above agreement between the defendant and the U.S. as a disposition document was otherwise agreed upon, the defendant shall be held liable for the case where the U.S. type of stone bears the defendant's responsibility under the above certificate. It is reasonable to view that the defendant has the duty of explanation as to the existence and content of the above certificate at the time of conclusion of the business partnership agreement of this case, regardless of whether the above certificate was prepared or not, at the time of conclusion of the business partnership agreement of this case. Further, the defendant mentioned the plaintiff as to the existence of the obligation of U.S. 100,000,000 won to U.S.

As above, inasmuch as an inevitable cause for withdrawal from an association has already occurred at the time of entering into the instant trade agreement, the Plaintiff’s withdrawal from the association is justifiable without any need to further examine whether the Defendant did not perform the distribution of profits, whether the Defendant did not report the matters of operation in writing, and whether the Plaintiff did not cooperate in the acquisition of the compensating expense.

C. Next, it is difficult to view that the plaintiff paid 140,000,000 won to the extent of the return of the investment funds as follows: the plaintiff did not actually engage in the business as the 2 Taekwondo course criminal of the above 2 Taekwondo course or did not participate in the operation of the above 2 Taekwondo course; and the defendant already entered into the investment contract with the 2 Taekwondo course on January 4, 2002 with the 2 Taekwondo course, as well as the 1 Taekwondo course and the 2 Taekwondo course were operated or planned to be operated by the defendant regardless of the contract of the above 2 Taekwondo course, in light of the fact that the 2 Taekwondo course was operated or operated by the defendant regardless of the contract of the above 2 Taekwondo course, it is difficult to view that the business of the 2 Taekwondo course was commenced at the time of cancellation or cancellation of the contract of the above 1 Taekwondo course, or that the association had transaction relations with the 3rd party, the defendant is obligated to pay 140,000,000 won with the above investment funds, and damages for delay from 26.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted for the reasons and it is so decided as per Disposition.

Judges Kim Tae-Gyeong (Presiding Judge)