[1] Whether the parties to the partnership agreement may cancel the partnership agreement and claim restitution from the agreement (negative)

[2] In a case where one of the partners performed a duty of investment and a partnership member was in a fluorous partnership and became in a fluoral partnership and became in a process of performing the original duty by the rest of the union member, whether it is possible to claim the dissolution of the partnership due to unavoidable reasons (affirmative), and in such a case, whether the partner who performed the duty of investment can seek the return of the investment

[1] Articles 543 and 703 of the Civil Act / [2] Articles 703, 719, and 720 of the Civil Act

[1] Supreme Court Decision 86Do2566 delivered on May 12, 1987 (Gong1987, 1012), Supreme Court Decision 87Da1448 delivered on March 8, 198 (Gong198, 657), Supreme Court Decision 94Da7157 delivered on May 13, 1994 (Gong1994, 1685) / [2] Supreme Court Decision 92Da21098 delivered on February 9, 1993 (Gong193, 935) Supreme Court Decision 98Da5458 delivered on March 12, 199 (Gong199, 658), Supreme Court Decision 2002Da27361 delivered on April 8, 2003

Plaintiff

Defendant (Law Firm Shin, Attorney Lee Jae-hwan et al., Counsel for defendant-appellant)

Seoul High Court Decision 2004Na76574 Delivered on September 23, 2005

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

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

In light of the evidence adopted by the court below, the judgment of the court below is just in determining the type of the building that the plaintiff and the defendant jointly invested and constructed, whether the defendant jointly purchased the land of the above housing site (hereinafter "the land of this case") obtained the plaintiff's consent while establishing the right to collateral security, and whether the plaintiff avoided the meeting with the plaintiff requesting the return of the investment amount, and there is no violation of the rules of evidence against the rules of evidence.

2. Regarding ground of appeal No. 2

A. In the partnership agreement, such as the partnership agreement, a request for dissolution of the partnership, withdrawal from the partnership, or expulsion from other union members can only be made as in the general contract, and the other party may not be obliged to pay the obligation to restore the original state due to the cancellation of the partnership agreement (see Supreme Court Decision 94Da7157 delivered on May 13, 1994).

According to the reasoning of the judgment of the court below, the plaintiff purchased the land of this case by mutual investment with the defendant and owned 1/2 shares on the ground, but the contract was concluded by the defendant to take charge of the purchase of the land and the construction of new housing (hereinafter referred to as the "agreement of this case"). Since it is reasonable to view that the agreement of this case is a partnership agreement, that is, a partnership agreement with the plaintiff and the defendant to purchase the land and operate a joint business with the construction of the building on the ground, by purchasing the land and conducting the joint business with the construction of the building on the ground. Thus, in light of the above legal principles, the plaintiff cannot seek restitution from the defendant after cancelling the agreement of this case as a general contract. Nevertheless, the court below determined that the plaintiff can seek restitution after cancelling the agreement of this case. In so doing, the court below erred by misapprehending the legal nature of the agreement of this case or the legal

B. However, in a partnership relationship with two persons, where one of them has invested an investment under the agreement, and a partner who has performed the said investment obligation has been in operation of the original business by the remaining members without excluding the entire investment relationship, a claim for dissolution may be made due to unavoidable reasons, and a partner who has performed the said investment obligation may seek the return of the amount of his own investment as a result of withdrawal (see Supreme Court Decisions 98Da5458, Mar. 12, 1999; 2002Da72361, Apr. 8, 2003, etc.). According to the reasoning of the judgment below and evidence adopted by the court below, the plaintiff can seek the return of the said amount of investment from the defendant's own land under the agreement between the defendant to purchase the land of this case under his own name and build a building for business purpose, and the plaintiff can be seen as having been in operation without the consent of the plaintiff's right to request the return of the above amount of investment to the plaintiff's own land under the name of this case.

C. Ultimately, as long as the above judgment of the court below is deemed justifiable, the error as seen earlier does not affect the conclusion of the judgment.

3. Conclusion

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

Justices Jeon Soo-ahn (Presiding Justice)