Whether a partnership agreement (cooperative agreement) may be cancelled;

The partnership agreement is a partnership agreement under the Civil Act, and in the partnership agreement, only a request for dissolution, withdrawal, or expulsion of other union members can be made, and the partnership agreement cannot be cancelled in accordance with the general provisions of the contract concerning termination of contract and the duty to restore to the other party.

Articles 703 and 543 of the Civil Act

[Plaintiff-Appellee] 1606 delivered on August 2, 1962, 4294

Plaintiff

Defendant

Seoul Central District Court (66A11335) in the first instance trial (Supreme Court Decision 66A135)

The original judgment shall be revoked.

The plaintiff's main claim is dismissed.

The defendant shall pay to the plaintiff 13,785,00 won with an annual interest rate of 5% from November 25, 1966 to the full payment day.

The plaintiff's remaining claims are dismissed.

All the costs of lawsuit shall be divided into three parts of the first and second instances, and one of them shall be borne by the plaintiff, and the remainder shall be borne by the defendant.

Only under paragraph (3) of this judgment may be provisionally executed.

(2) The defendant shall execute the procedure for cancellation of the registration of the transfer of mining rights on December 27, 1961 for the registration of the mining right of No. 24357, Dec. 27, 1961 for the plaintiff (No. 4077, Dec. 27, 1961; No. 864,00, Dec. 27, 1961 for the registration of the mining right of No. 24359, Dec. 27, 1961 (No. 4076, Dec. 27, 1961); the representative of the new-dong (No. 1 omitted); the representative of the new-dong (No. 2 omitted); the plaintiff of Yongsan-gu (No. 1 omitted); and the plaintiff of Yongsan-dong (No. 2); and the mining right transfer registration on December 27, 1961.

Litigation costs shall be borne by the defendant.

(Preliminary) The Defendant shall pay to the Plaintiff the amount of KRW 20,000,000 with the annual rate of KRW 5% from December 28, 1961 to the date of full payment.

The judgment that the lawsuit costs shall be borne by the defendant and the declaration of provisional execution

The original judgment shall be revoked.

The plaintiff's claim is dismissed.

All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.

The mining right of this case as stated in the purport of the claim was originally owned by the plaintiff, and there is no dispute between the parties as to the fact that the mining right of this case was originally owned by the plaintiff and the defendant on December 27, 1961 due to the donation by the plaintiff and the defendant joint title

(1) On November 15, 1961, when the plaintiff sought the cancellation of the registration for the transfer of mining rights above, which had been entered into under the joint name with the defendant, the plaintiff first, it is necessary to issue a letter of credit to the plaintiff on the export of tin, so if the plaintiff is the sole owner of the mining right, the defendant would prepare a joint development agreement to the above company, and would make it possible for the above company to open a letter of credit and enter into a joint development agreement on the mine in the form of the above. Accordingly, on December 10 of the above year, the plaintiff prepared and delivered a letter of agreement to that effect to the defendant. On December 10 of the above year, the defendant again entered into a business contract with the defendant on December 19, 1961, and then prepared documents necessary for the registration for the transfer of mining rights after keeping the documents in custody with the plaintiff and the defendant's contract for the transfer of mining rights, and then the defendant cannot be held liable for the cancellation of the above documents.

However, there is no clear evidence to acknowledge that the above registration of the transfer of a mining right was passed without a cause like the plaintiff's head of the court below's non-party 1's testimony, etc., and rather, the registration of the transfer has been duly passed through through the agreement between the plaintiff and the defendant. Therefore, the above assertion cannot be accepted as without merit.

In other words, even if the registration of transfer of the above mining right is not null and void, the plaintiff asserts that the transfer should pay the plaintiff the share purchase price of KRW 20,000,000 (the share purchase price of KRW 200,000,000) to the plaintiff, and that the payment should not be made regardless of the fact that the registration is completed first, and that the payment should not be made, and that the above sale contract was cancelled at the end of demanding the payment of the above amount because the light extracted from the mine has not been disposed of at will, and that the registration of transfer of mining right

However, the plaintiff's principal's sale of shares in the mining rights is without dispute, in short, the statement of No. 10-2 (certified Copy of the Mining Rights Register) and the whole purport of oral argument, and the joint mining rights of the plaintiff and the defendant, as the representative of the defendant, are not different from the partnership agreement under the Civil Act. In the partnership agreement, the partnership's dissolution, withdrawal, expulsion, and expulsion of other union members can only be made in accordance with the partnership agreement under the partnership agreement, and it is not possible to cancel the partnership agreement and to impose the obligation to restore to the other party. Therefore, the plaintiff's principal claim for cancellation of the registration for the transfer of mining rights based on the cancellation of the contract shall not be accepted.

(Judgment on Preliminary Claim) The plaintiff asserts that if a partnership contract is concluded for the mining right of this case and the head of the rescission is groundless, the defendant should pay the amount of KRW 20,000,000 and the damages for delay at the rate of 5% per annum from the day following the registration of transfer to the date of full payment.

Since the defendant's seal impressions of Gap's 1-2 (each letter of agreement), Eul's 1-2 (written agreement) without dispute over the establishment of the entire document, Eul's 1-2 (written agreement) and 10-2 (written agreement) respectively, the testimony of non-party 1, 2, 3, and 4 of the court below and the result of verification of non-party 1-2 of the court below's case of non-party 1-2 (except those inconsistent with above) against the defendant's Seoul District Public Prosecutor's Office's Office's 67-5372) regarding the mining right of this case, the defendant's contribution to 10-2 of the whole document's 10-2 as well as 16,000,000, and the defendant's contribution to 10-200,0000, 2000, 200, 1000, 200, 200, 200, 200, .

Furthermore, as seen above, the relationship between the Plaintiff and the Defendant’s receipt of investments under a partnership agreement between the Plaintiff and the Defendant was examined: (a) the Defendant agreed to pay the Plaintiff a sum of KRW 20,000,000 as investments in the partnership agreement; (b) not only made a transfer registration under a partnership agreement with respect to the mining right prior to the full payment, but also made a de facto operation of the mine; and (c) there was no clear agreement with regard to the timing of payment for the amount of investments; (d) however, there was no evidence suggesting that the Defendant agreed to export tin to Japan and make an investment from its profits; and (e) the Plaintiff did not have received money as investments under the partnership agreement from the Defendant to the date of the Plaintiff’s payment of KRW 16,00,000 or KRW 6,000 as investments in the partnership agreement (the Plaintiff’s preparatory brief on February 4, 1967 did not make a statement from the Defendant to the date of the Plaintiff’s payment of KRW 30,1000,1000,200,2000.

However, according to the above verification result (non-party 3's statement) of the court below, the defendant's above 5,915,00 won (including 1,00,000 won stated in Eul's 16-1) as its investment to the plaintiff until December 27, 1961, and Eul's 15,16-16 (Receipt) which can be admitted by the non-party 3's testimony of the court below, 100,000 won, 200,000 won were paid to the plaintiff and 30,000,000 won were 6,00,000 won were 10,000 won and 30,000 won were 6,00,000 won were 0,000 won were 16,000 won were 30,000 won were 6,000 won were 16,000 won were 16,000 won were 196.6.

Of course, there is no doubt that there was an occasional receipt of money due to the Plaintiff and the Defendant’s transfer of rights and duties according to the share of ownership. As such, as seen in the evidence (receipts, etc.) No. 21 of the evidence No. 21, a number of 0,000 won received over several times, such sum cannot be deemed to have been paid as part of the investment of KRW 20,000,000.

In addition, the defendant asserted that the defendant's share of the plaintiff due to joint development of mine was offset against the total amount of the plaintiff's share of the 4,460,000 won, including the amount of subrogated payment of KRW 2,230,500,000, international telephone fee of KRW 181,250,000, which is one half of the expenses for inviting technicians, etc., KRW 285,000, half of the expenses for inviting technicians, etc., KRW 1,290,95, half of the amount of losses for mine joint development, which is 645,490,000, which is equal to the aggregate amount of the plaintiff's share of the 4,460,000 won, which is the amount of the defendant's share of the 4,50,000 won for the non-party 5. Therefore, even if the plaintiff's share of the 362,500,000,000, it cannot be accepted as a joint mining right holder.

Therefore, the defendant should pay interest at the rate of 5% per annum from November 25, 1966 to the date of full payment, which is obvious in the record that the remaining amount after deducting the amount of 6,215,000 won already paid to the plaintiff from the total amount of investment is the next day of the delivery of the plaintiff, and from November 25, 1966 to the date of full payment (the defendant's obligation to pay investment in the same kind of business is not determined due, so it cannot be viewed as the next day of registration of mining right like the plaintiff's head, and it is not clear that the date has been determined differently, but it is recognized that there was the highest payment of the plaintiff in light of the purport of the whole pleading, so the remaining part of the plaintiff's preliminary claim which the defendant accepted the plaintiff's principal claim in this case, and thus, it is unfair to revoke the plaintiff's provisional execution, and it shall be applied Article 96 and Article 89 of the Civil Procedure Act with respect to the burden of litigation costs by applying Article 96 and Article 99 of the Civil Execution Act.

Judges Cho Young-dong (Presiding Judge) Kim Young-dong