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(영문) 서울중앙지방법원 2018.09.20 2017가합516785
보증금반환
Text

1. The plaintiff's claims against the defendants are all dismissed.

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

Reasons

1. Basic facts

A. A. Around December 1, 2016, D, E, and Defendant B (hereinafter “Defendant Association”) concluded an agreement with the Defendant Association to pay the amount of the said obligation to D as the guarantor if the repayment is not made by the aforementioned date, and C also signed and sealed the name and seal on the part of the guarantor column.

B. On December 2, 2016, the Plaintiff acquired the claim amounting to KRW 350 million against D’s Defendant Partnership between D and D.

(hereinafter referred to as the "transfer of the above claim" is the assignment of the claim. (c)

On February 24, 2017, the Plaintiff sent notice of the instant assignment of claims to the effect that the Defendant Union (F at the time of representative) as a guarantor, and C, obtained the claim from D by content-certified mail.

【Ground of recognition】 The fact that there has been no dispute, Gap evidence 2-1, 2-1, 3-1, 4-1, 4-2, and the purport of the whole pleadings

2. Judgment on the defense prior to the merits of the Defendant Union

A. The defendant union asserted to the effect that the fund of the association was invested in the investment company to operate a joint business by investing its capital stock and debentures, and that it cannot be a new partner unless it takes the first subscription procedure (except for special resolution or the transfer and succession of the status of the association members) and that the property of the association was jointly owned by the union members. Thus, the defendant union asserted to the effect that it constitutes a partnership under the Civil Act and has no capacity to be a party.

B. An organization with a name of an association under the Civil Act, even if it is an organization with its own purpose to establish rules that have the nature of an association with its own objective and, on this basis, have a decision-making body and a representative who is an executive body. The decision of the organization or the method of its execution is carried out by the principle of majority majority, and regardless of changes arising from the membership, withdrawal, etc.

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