Whether the provisions on the cause of dissolution and liquidation of a partnership under the Civil Act are mandatory provisions (negative)

Since the provisions on the cause of dissolution and liquidation of a cooperative under the Civil Code are not mandatory provisions that exclude any special agreement between the parties who differ from those provisions, if the parties make a special agreement different from the provisions on the cause of dissolution and liquidation of a cooperative under the Civil Code, such special agreement

Articles 105 and 720 of the Civil Act

Supreme Court Decision 65Da560 Delivered on August 31, 1965

Plaintiff 1 and two others, Attorneys Yoon Young-hoon et al., Counsel for the plaintiff-appellant-appellee)

Defendant

Seoul High Court Decision 83Na3188 delivered on July 27, 1984

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

The grounds of appeal are examined.

According to the reasoning of the judgment below, the above non-party 1 and the non-party 2 were dismissed on November 2, 1980, and the non-party 1 had the above non-party 2's non-party 1's non-party 1's non-party 2's non-party 2's non-party 2's non-party 2's non-party 1's non-party 2's non-party 2's non-party 2's non-party 1's non-party 2's non-party 2's non-party 1's non-party 2's non-party 1's non-party 2's non-party 1's non-party 2's non-party 1's non-party 3's non-party 3's non-party 1's non-party 1's non-party 1's non-party 2's non-party 1's non-party 1's non-party 1's non-party 2's non-party 1's non-party 1'.

However, as determined by the court below, if the original land was registered in the name of a third party and the above non-party 1 fails to acquire it and make investments in the partnership, as determined by the court below, it is clear that the above non-party 1 did not perform the investment obligation under the above business agreement. In light of the evidence No. 12-1 (Notice) written on February 18, 1982, the above non-party 2 declared that the above non-party 1 did not perform the investment obligation under the above business agreement of the above non-party 1 on February 18, 1982, since the above non-party 1 did not perform the investment obligation under the above business agreement of the above non-party 1, the above non-party 2 expressed his intention to cancel the business agreement of the above non-party 1 to the above non-party 1. The court below's decision that the plaintiffs' assertion cannot be acknowledged only without the confirmation of the facts and the rejection of evidence No. 12-1 of the above non-party 12 cannot be established.

In addition, since the provisions on the cause of dissolution and liquidation of a cooperative under the Civil Act are not a mandatory provision excluding any special agreement between the parties who have different contents, such special agreement shall be deemed valid if the parties have made a special agreement different from the provisions on the cause of dissolution and liquidation of a cooperative under the Civil Act (see Supreme Court Decision 65Da560, Aug. 31, 1965). In this case, the purport of the above agreement between the above non-party 1 and the above non-party 2 on December 15, 1981 can be expressed to the above non-party 1 that the above non-party 1 would cancel the above business agreement if the non-party 1 did not perform the investment obligation under the above contract, and it shall be deemed that the above non-party 2 was the sole ownership of the above business property without going through a special procedure on the grounds of dissolution and liquidation of the provisions under the Civil Act.

Unlike the contents of the above special agreement, the court below determined that the building of this case still remains as the joint property of its members until the completion of the liquidation relationship. It erred in the misapprehension of the contents of the above special agreement, which misleads the judgment on the reversion of the business property.

Therefore, the judgment of the court below is reversed, and the case is remanded to Seoul High Court. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Il-young (Presiding Justice)