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(영문) 대전지방법원서산지원 2020.11.11 2020가단51599
부당이득금
Text

All of the plaintiff's claims are dismissed.

Litigation costs shall be borne by the plaintiff.

Reasons

1. The following facts can be acknowledged in light of the purport of the whole pleadings in each of the statements in Gap evidence Nos. 1 to 4, and No. 8.

On November 10, 1995, the Plaintiff’s father F, the Defendant’s decedent G, H, I, and J entered into a Dong business agreement that jointly establishes and operates “K” for the purpose of the automobile maintenance business (hereinafter “instant Dong business”).

B. Upon entering into the instant trade agreement, the term of the contract was set at five years and agreed that F will not return the investment amount to members who withdraw within five years, with the agreement that G will contribute to the investment amount of KRW 150 million, KRW 40 million, KRW 30 million, KRW 30 million, KRW 10 million, and KRW 10 million.

C. Meanwhile, H and I withdrawn from the instant partnership business, and was registered as joint business operators under F, G and J Only on December 20, 200, and the Plaintiff was corrected to be joint business operators on July 18, 2016.

On July 20, 2016, the Plaintiff paid KRW 50 million to G.

E. On September 6, 2019, G: (a) died on September 6, 2019, Defendant B (Inheritance Shares 3/9); and (b) the remainder of the Defendants (Inheritance Shares 2/9), who are their children, inherited their property.

2. The assertion and judgment

A. The Plaintiff’s assertion 1) G retired from the instant partnership on December 15, 1997, while receiving all amounts of settlement of accounts from F, but maintained the name of the business in order to apply the health insurance, etc. (2) After that, on July 20, 2016, G demanded G to exclude the Plaintiff from the business in order to register the Plaintiff as a joint business proprietor under the instant partnership. However, G was said to undermine the harm and injury to the instant partnership if it is excluded from the business proprietor.

3) Accordingly, the Plaintiff and the F may change the business entity after the payment of KRW 50 million to G by means of the harm notice of G. 4) However, such harm notice of G and the benefit therefrom fall under the crime of unjust enrichment (Article 349 of the Criminal Act) or the crime of extortion (Article 350 of the Criminal Act) or the crime of good morals and other social order.

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