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(영문) 서울고등법원 2018.01.24 2017나2030451
부당이득금
Text

1. All appeals filed by the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) are dismissed.

2. The costs of appeal shall be individually counted.

Reasons

1. The reasoning of the court of the first instance’s explanation concerning the instant case is as follows, and thus, it is consistent with the reasoning of the first instance judgment, except for the following parts, thereby citing it as is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

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Even if such damage is caused by an association that lost its property, it cannot be deemed that the above act of providing security is merely an individual transaction for the personal benefit between a certain member and a victim. Even if a victim member lost his/her share of joint maintenance of the real estate, this is not an individual but merely an damage suffered from the member's status. Thus, the victim's member cannot seek damages in the status of an individual who goes beyond the partnership relationship.

(2) In light of the aforementioned legal principles, the Defendants cannot seek damages from an individual partnership relationship, since the Plaintiff’s loss incurred by the Plaintiff’s act of theft was not a loss of the partnership’s property, but a personal damage was not a part of the Defendants, based on the following: (a) the Plaintiff, from April 7, 2014 to April 10, 2014, stolen tobacco, etc. equivalent to KRW 4,070,000 at a market price from D warehouse over ten times; (b) on this ground, the Plaintiff was convicted on April 16, 2015 and sentenced to a fine of KRW 1,50,000 (see, e.g., Supreme Court Decision 2015Da96, Apr. 16, 2015).

I would like to say.

Therefore, this part of the defendants.

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