The burden of proof for the cause of default

In general, the burden of proof for the cause of non-performance in the claim for damages due to non-performance is on the debtor. Thus, the burden of proof for the cause of non-performance in the contract of the business should be deemed to be on the person responsible for non-performance in the case of damages due to the inevitable employment of a third party because one of the partners does not perform the assigned duties.

Article 390 of the Civil Act, Article 187 of the Civil Procedure Act

Plaintiff 1 and one other

Defendant-Appellant Doctrine et al.

Seoul High Court Decision 83Na4644 delivered on July 19, 1984

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

The defendant's attorney's grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below acknowledged that the plaintiffs and the defendant operated the two sub-factory as a partner, and the plaintiff 2 was responsible for the purchase of goods, the sale and the management of the employees, and the plaintiff 1 was responsible for the management of the factory. Since the dispute between the plaintiffs and the defendant occurred between June 1978, the plaintiffs did not participate in the factory business, and the plaintiffs were employed by two persons while operating the factory independently by the defendant and let the plaintiffs engage in the business that the plaintiffs were responsible for. The defendant's offset defense, that is, the defendant's 22,920,000 won, which the defendant paid to the above two vice-contractors as labor expenses, was incurred due to the failure of the plaintiffs to perform their duties as partners, and therefore, the plaintiff 1/3,640,000 won, which constitute the double defendant's damages, was set off against the amount equal to the dividends of this case that the defendant paid to the plaintiff. According to the evidence of the above business execution, the plaintiffs cannot be admitted to the above facts.

2. However, in light of the debtor's burden of proof as to the cause of non-performance in the claim for damages due to non-performance of obligation, the plaintiffs and the defendant, like in this case, operate the partnership by sharing their duties according to the partnership agreement. Since the plaintiffs' failure to perform their duties, it is inevitable to employ a third party and cause damages due to vicarious execution of their duties, the burden of proof as to the cause of non-performance of duties under the partnership agreement shall be deemed to exist to the plaintiffs, who are the obligor.

Nevertheless, the court below rejected the defendant's defense of offsetting on the premise that the defendant bears the burden of proof as to the causes attributable to the plaintiffs, and there is no evidence to prove that the plaintiffs are responsible for the causes attributable to them. This cannot be said to have committed an unlawful act of misunderstanding the legal principles as to the sharing of the burden of proof. Moreover, even if examining the evidence presented by the court below, it is not easy to find that the plaintiffs are unable to enter the factory from June 1978 due to the causes not attributable to them.

3. Ultimately, the judgment of the court below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion, since the above illegality of the judgment below constitutes grounds for reversal under Article 12 (2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings.

Justices Lee Il-young (Presiding Justice)