Whether the revitalization committee organized by the eight-story shop owners of the Studio commercial building to change the internal structure of the eight-story commercial building and to promote the rental sale of the eight-story commercial building can be seen as a partnership under the Civil Act (negative)

Article 703 of the Civil Act

Supreme Court Decision 2003Da60778 Decided April 9, 2004, Supreme Court Decision 2007Da44965 Decided July 10, 2008

Plaintiff

Defendant 1 and one other (Law Firm LLC, Attorneys Yellow-jin et al., Counsel for the defendant-appellant)

Seoul Eastern District Court Decision 2006Na6500 decided May 30, 2007

The judgment of the court below is reversed, and the case is remanded to the Seoul Eastern District Court Panel Division.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

The partnership agreement under the Civil Act is a contract under which two or more persons agree to jointly operate a business by mutual investment (Article 703 of the Civil Act). It can be deemed as a partnership agreement only for an agreement to jointly operate a specific business, and the degree of the common achievement of the purpose does not meet the requirements for establishment of a partnership (see Supreme Court Decisions 2003Da60778, Apr. 9, 2004; 2007Da44965, Jul. 10, 2008, etc.).

According to the facts established by the court below and the evidence duly admitted by the court below, some of the shop owners of the 8th floor floor of this case including the defendants (hereinafter "Dong shop owners"), including the defendants, submitted to the representative of the committee for revitalization of this case a written consent confirming that they had no objection to the alteration of the internal structure of the 8th floor building and the creation and lease of electronic equipment store. The above written consent does not include any content that the whole 8th floor building was planned to operate the electronic equipment store under joint distribution of profits and losses, and the above non-party's distribution company entrusted by the above non-party entered into the lease contract of this case with the same tenant, and the lease contract of this case clearly states that the right of lease can be secured only when concluding a separate contract with the owner of the store, and even after the presentation of the above written consent by the Dong shop owners, they are not restricted in disposing of their own shares.

In light of the legal principles as seen earlier and the above facts, it is difficult to deem that the Dong store owners have satisfied the requirements for establishment of the association, rather than having been formed by mutual investment in the agreement to operate a joint business. Rather than having been established by the agreement, it is merely a group for the joint purpose that the Dong store owners created the internal structure of their stores by means of electronic equipment stores and re-leased them. However, according to the records of this case, it is reasonable to deem that each Dong store owner and the Nonparty agreed to jointly operate the rental sale business only with the stores owned by each Dong store owner and the Nonparty. In this case, each Dong store owner may be jointly and severally liable for the return of rental deposit, etc. to the buyers within the scope related to the leased one's store.

Nevertheless, solely based on the circumstances indicated in its reasoning, the court below erred by misapprehending the legal principles as to the interpretation of a sales delegation contract or the association, which points out this issue is the association where the sales partners jointly invest their stores and build and lease the 8th commercial building of this case as an electronic equipment store and then gain profits, such as security deposit. The ground of appeal pointing this out is with merit.

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Lee Hong-hoon (Presiding Justice)