[1] The method of interpreting a case where there is a conflict of opinion on the interpretation of an oral agreement between the parties and the interpretation of the agreement is at issue

[2] The case holding that in case where Gap and Eul agree to conduct a partnership business agreement between Gap and Eul, and Eul made a verbal agreement that Eul will preferentially pay the amount equivalent to the amount of the mining cost out of the amount acquired by selling the digging cost, it is difficult to view that Eul would bear the duty to pay the amount equivalent to the amount of the mining cost supply cost to Gap, even in the case where the partnership business relationship between Eul and Eul is terminated and the settlement of accounts is at issue, even in the case where Eul did not pay the profit as the result of the partnership business, and even in the case where the settlement of accounts is at issue, it is difficult to view that Eul

[1] Article 105 of the Civil Act / [2] Article 105 of the Civil Act

[1] Supreme Court Decision 93Da32668 delivered on March 25, 1994 (Gong1994Sang, 1320) Supreme Court Decision 2008Da9095 delivered on May 14, 2009, 90101 (Gong2009Sang, 837)

Plaintiff

Defendant

Gwangju High Court Decision 2008Na5119, 5126 decided January 8, 2010

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

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning after compiling the adopted evidence, and determined that when the plaintiff supplied digging expenses, the defendant is obligated to pay to the plaintiff the amount equivalent to the non-explosion cost and the delay damages remaining after the agreement, because the plaintiff and the defendant jointly engaged in the business of selling sofassing in Seoul and Gyeonggi, such as securing a selling place of sofassing through business activities and transporting and supplying the sofassing. At the time of the agreement on the business of the above, the defendant agreed that the plaintiff would receive the sales proceeds of sofassing from the customer regardless of the settlement procedure of the business relationship in the future (hereinafter referred to as the "agreement in this case"), and therefore, the plaintiff would be obligated to pay the plaintiff the amount equivalent to the non-explosion cost and the delay damages.

2. In a case where there is a conflict of opinion regarding the interpretation of an oral agreement between the parties, and the interpretation of the agreement is at issue, it shall be reasonably interpreted in accordance with logical and empirical rules, and the common sense of social justice and equity, and the common sense of transaction, by comprehensively taking into account the form and content of expression, the motive and background leading up to the agreement, the purpose and genuine intent to be achieved by the agreement, transaction practices, etc. (see, e.g., Supreme Court Decisions 93Da32668, Mar. 25, 1994; 2008Da9095, May 14, 2009; 2008Da9095, 90101, etc.).

The court below interpreted the meaning of the instant agreement to the effect that in any case, regardless of the existence of the partnership relationship between the plaintiff and the defendant, the defendant would once pay the amount equivalent to the amount of the so-called "refescing cost" to the plaintiff in preference to the distribution of profits and losses. However, the court below's determination is difficult to accept

According to the records, the defendant was present at the investigative agency and did not prepare a partnership contract separately from the plaintiff, and the condition of the partnership business is recognized as the fact that the cost portion is sent out to the plaintiff, and if net profit occurs when the proceeds are excluded from the remaining profits, then the profits were divided by half (record 347), and the fact that the defendant stated that the plaintiff would pay to the plaintiff only for the price of supplied goods that the plaintiff supplied to the plaintiff as the price of goods enters (record 554 pages).

However, on the other hand, as recognized by the court below, the defendant received the sales proceeds of softening from the business partner during the period of the above business as well as paid the plaintiff an amount equivalent to the cost of softening costs. Rather, the defendant used a considerable portion of such amount as business expenses necessary for selling softening expenses, such as office rents, employees' wages, sales place management expenses, etc., and the plaintiff was reported several times from the defendant on the business plan, sales situation, and payment of wages, etc., so the defendant was aware of the fact that the business expenses have been disbursed as the sales proceeds of softening costs, and even if the amount equivalent to the cost of softening costs supplied from December 2, 2004 to May 30, 2005 was not paid, the defendant continued to provide the defendant with softening costs without specifically demanding the payment of the amount.

Therefore, in light of the current status of transactions and the attitude of conduct that the plaintiff and the defendant maintained the partnership relationship, the agreement of this case is to facilitate the supply of softs that the plaintiff takes charge of the partnership relationship in order to continue the partnership relationship, and above all, the purport of the agreement of this case is that the defendant in charge of the business should pay the plaintiff the amount equivalent to the cost of softs before he receives the sales proceeds from the customer who takes charge of other expenses as much as possible. Even if the legal binding force of this agreement is recognized, it is reasonable to interpret it as an agreement premised on the existence of the partnership relationship between the plaintiff

However, according to the records, the plaintiff asserted that "the defendant was supplied with digging expenses by deceiving the plaintiff without the intention or ability to pay the price, and some of them was provided to co-defendant 2 of the court of first instance on November 9, 2005 as a debt security, etc." and on April 3, 2006, the above co-defendant 2 of the court of first instance filed a complaint by fraud, embezzlement, etc. (record 121, 467). The plaintiff later stated that "the defendant was present at an investigative agency and was suspended from transactions on October 2005 because he did not receive the price (Records 139 pages)," and the defendant also maintained the mutual trust relationship between the plaintiff and the defendant on March 29, 2005, and the defendant did not receive any more than 15 years since it was destroyed by the mutual trust relationship between the plaintiff and the defendant on November 29, 2005 (Records 127, etc.).

In a case where a partnership becomes effective when two or more persons agreed to carry on a joint business by making a mutual contribution, and is dissolved due to the expiration of the term of existence, the completion or failure of the target business, the failure of trust among the members, and the failure of trust among the members, and the settlement among the members is carried out by the method of distributing the residual property, unless there is a separate agreement among them, unless the liquidation procedure is followed. As recognized by the court below, it is the partnership property that the plaintiff provided to the defendant for use in the distribution of the remaining property in the distribution of the remaining property, in principle, as recognized by the court below, in view of the fact that the digging expense in this case is the partnership property that the plaintiff provided for use in the distribution of the remaining property for the distribution of the remaining property, it is difficult to see that the plaintiff and the defendant did not consider whether the above partnership relationship was terminated and the defendant did not pay the profits earned from the partnership business to the plaintiff first, in the sense that

Although the lower court stated that the Defendant may seek a separate claim against the Plaintiff for the distribution of profits or the apportionment of losses arising from the settlement of the partnership relations, it is not appropriate to resolve disputes arising from the settlement of partnership relations in a single manner, and it is also inconsistent with social norms and transaction practices to preferentially return investment funds only to one of the parties and to divide profits and losses including the above return funds through a separate settlement procedure.

The judgment of the court below is erroneous in the misapprehension of the agreement between the parties and the legal principles on the settlement of accounts following the dissolution of the association.

The ground of appeal pointing this out is with merit.

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 Yang Chang-soo (Presiding Justice)