[1] In a case where there is a restriction agreement on the general partner's power of representation, the existence of the agreement and the location of the burden of asserting and proving the existence of the agreement

[2] The meaning of "when a judgment was omitted on an important matter that may affect the judgment"

[1] According to Article 709 of the Civil Act, when a partner has determined or appointed a manager under a partnership agreement, the managing member shall be presumed to have the power to act for the partnership to the extent necessary to achieve the purpose of the partnership. However, since the above provision is a voluntary provision, it may be determined differently by an agreement between the parties, such as requiring the consent of all the union members as to the execution of affairs of the partnership. In the event that such agreement exists, the execution of affairs of the partnership shall be effective only when all the union members consent to the agreement. Thus, the presumption that when a member of the partnership claims and proves the existence of the above agreement, the managing member has the power to act for the union member is broken and the other party who performed the legal act between the managing member and the union member has consented to the effect of the legal act.

[2] "When a judgment has been omitted on important matters that affect the judgment" refers to cases where a judgment is not clearly stated in the reasoning of the judgment concerning the methods of attack and defense submitted by the parties in a lawsuit, which affect the judgment, and as long as there is a judgment, it shall not be deemed a deviation from the judgment under the above Article, even if the reasons leading to the judgment are not sufficiently explained or the grounds for rejecting the parties' claims are not individually explained.

[1] Articles 105 and 709 of the Civil Act, Article 261 of the Civil Procedure Act / [2] Articles 393 and 422 (1) 9 of the Civil Procedure Act

[1] Supreme Court Decision 95Da30345 delivered on March 13, 1998 (Gong1998Sang, 996) / [2] Supreme Court Decision 94Da31 delivered on December 22, 1995 (Gong1996Sang, 464 delivered on February 24, 1998) Supreme Court Decision 97Da278 delivered on February 24, 1998 (Gong1998Sang, 845 delivered on July 6, 2000), Supreme Court Decision 200Da47200 delivered on July 24, 200 (Gong200Ha, 1863)

Youngwon Industrial Development Co., Ltd. (Law Firm, Kim & Lee, Attorneys Jae-hwan et al., Counsel for the plaintiff-appellant)

Defendant (Co-Defendant 2 of the first instance court) (Law Firm Hank, Attorneys Noh Jeong-si et al., Counsel for the defendant-appellant)

Seoul High Court Decision 99Na25923 delivered on October 1, 1999

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below determined that the defendant 1 and the non-party 1, who operated the above comprehensive construction work for the first instance court 1 and the non-party 1, who signed the above comprehensive construction work for the first instance court 1 and the non-party 1, who agreed to the name of the joint supply and demand organization for the joint construction work for the second-party 1, which was executed by the non-party 1, the non-party 1, and the non-party 1, who was the joint supply and demand organization for the construction work for the second-party 1, 197 as the representative of the joint supply and demand organization for the above construction work for the non-party 2,649,800,000 won, and the above construction work for the non-party 1, the representative of the joint supply and demand organization 0,000 won for the above construction work for the non-party 2, as the representative of the above joint supply and demand organization 97,000 won for the above construction work price for the above 97.

In light of the records, the court below's above fact-finding and judgment are acceptable, and there is no error in the misapprehension of legal principles or misapprehension of legal principles due to the violation of the rules of evidence or the contradiction of reasons, as alleged in the grounds of appeal

2. The court below rejected the defendant's assertion on the ground that it was not proved that the defendant and the co-defendant 1 of the court of first instance have made an agreement with the defendant as to the conclusion of the subcontract contract of this case between the plaintiff and the co-defendant 1 of the court of first instance on the ground that the co-defendant 1 of the court of first instance did not have the defendant's right to represent the defendant since the contract of this case between the plaintiff and the plaintiff did not have the defendant since the co-defendant 1 of the court of first instance agreed to obtain the consent of other members in the case of subcontracting to a third party, at the time of the formation of the joint supply and demand contract of this case, the contract of this case between the defendant and the co-defendant 1 of the court of first instance at the time of the formation of the joint supply and demand contract of this case

According to Article 709 of the Civil Act, when a partner has determined or appointed a manager under a partnership agreement, the managing member shall be presumed to have the power to act on behalf of the partnership to the extent necessary to achieve the objectives of the partnership. However, since the above provision is a voluntary provision, it may be determined differently by the agreement between the parties, such as requiring the consent of all the partners regarding the execution of the partnership's business, and if such agreement exists, the execution of the partnership's business shall be effective only when all the partners consent (see Supreme Court Decision 95Da30345, Mar. 13, 1998). Thus, if a partner asserts and proves the existence of the above agreement, the presumption that the managing partner of the partnership has the power to act on behalf of the partners is broken and the other party who performed the legal act between the managing member and the other union member has consented to the effect of the legal act, it is necessary to assert and prove that there was the consent of all the partners in accordance with such agreement.

In this case, the court below, which recognized the fact that there was an agreement between the defendant and the co-defendant 1 of the court of first instance as alleged by the defendant at the time of the formation of the joint supply and purchase organization of this case, bears the burden of proving that the defendant did not consent to the subcontract of this case to the plaintiff. In light of the above legal principles, it is obvious that the court below erred in the misapprehension of legal principles as to the burden of proof

However, according to the records, the terms and conditions of the above joint supply and demand corporation should be included in the name of the above joint supply and demand corporation in Incheon area, and the joint defendant 1 of the first instance court shall be capable of independently executing landscaping construction works among the construction works contracted to the Corporation, but as such, the defendant was awarded a contract for construction works by including the defendant, who is a landscape contractor in Incheon, in the joint supply and demand corporation. As a result, the joint defendant 1 of the first instance court agreed not to participate in all construction works but to receive money equivalent to a certain percentage of the shares of construction works in the name of the defendant 1 in the name of the joint supply and demand corporation. Accordingly, the defendant was interested in the payment of the price agreed by the joint defendant 1 of the first instance court for the construction works to the defendant 1 and the joint defendant 1 of the first instance court's first instance court's first instance court's first instance court's first instance court's first instance court's first instance court's first instance court's first instance court's first instance court's first instance court's first instance court's first instance's first instance's first instance's first instance's first instance's first instance's second judgment's second judgment's second judgment's second judgment's second judgment's second judgment's conclusion.

Therefore, the subcontract of this case was concluded based on the lawful representation by Co-Defendant 1 of the first instance court with the defendant's consent, and thus the contract is effective to the defendant, who is the principal. Therefore, even if there is an error of law in the misapprehension of legal principles as to burden of proof as seen earlier, the conclusion of the judgment is legitimate, and it does not affect the conclusion of the judgment, and thus,

3. The term "when a judgment has been omitted on important matters that may affect the judgment" refers to cases where a judgment is not clearly stated in the reasoning of the judgment with respect to the means of attack and defense submitted by the parties in a lawsuit, which may affect the judgment, and as long as a judgment has been rendered, it shall not be deemed a deviation from the judgment as referred to in the above Article of the Act, even if the reasons leading to the judgment are not clearly explained or the grounds for rejecting the parties' claims are not individually explained (see, e.g., Supreme Court Decisions 200Da193, 209, Jul. 6, 2000; 200Da47200, Nov. 24, 2000).

Examining the reasoning of the lower judgment in light of the record and the foregoing legal doctrine, the lower court cannot find out that there was an error of omission of judgment, as otherwise alleged in the grounds of appeal. The argument is without merit.

4. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-in (Presiding Justice)