(영문) 인천지방법원 2016.09.23 2016가합1140

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(영문) 인천지방법원 2016.09.23 2016가합1140

동업계약서 무효 확인

Text

1. The plaintiff's lawsuit of this case against the defendants is dismissed in entirety.

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

Reasons

1. The Plaintiff asserted that the Plaintiff: (a) transferred the business entity of D’s trade name to Defendant C on October 2012; and (b) drafted the same trade agreement with Defendant C as of July 1, 2013 (hereinafter “instant trade agreement”); (c) rather than having entered into the same trade agreement, the Plaintiff, while operating D, prepared the instant trade agreement to compensate the Defendants for the amount of KRW 50 million borrowed from the bank; and (d) in order to secure its implementation, the Plaintiff sought confirmation that the instant trade agreement was a false document different from the fact.

2. Whether the lawsuit of this case is lawful

A. In a lawsuit for confirmation, the subject of confirmation must, in principle, be the legal relationship with rights, and mere fact-finding is not allowed (see Supreme Court Decision 92Da23872, Dec. 8, 1992). The lawsuit of this case is merely seeking confirmation of fact that the contract of this case was prepared differently from the fact that the contract of this case was not actually concluded, and there is no interest in confirmation.

B. Even if the Plaintiff’s instant lawsuit against the Defendants were to seek confirmation that the partnership agreement concluded with the Defendants as of July 1, 2013 was null and void, there is no benefit of confirmation for the following reasons.

1) The Plaintiff appears to have filed the instant lawsuit against the Defendants in order to confirm the legal relationship that the Defendant C only operated in the name of Defendant C after transferring the business entity to Defendant C, but is not a substantial business entity, and thus the Plaintiff is unable to become a taxpayer with respect to the pertinent taxes arising during the period registered as a joint business entity D. 2) In order to confirm the legal relationship in a lawsuit seeking confirmation of the legal relationship, there is a benefit to confirm the legal relationship in the lawsuit seeking confirmation, the rights or legal status of the person who filed the lawsuit according to the legal relationship should be generated, and the risk

참조판례

-대법원 1992. 12. 8. 선고 92다23872 판결

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