[합자회사사원변경등기][집16(3)민,119]
Where general partners in a limited partnership company transfer equity shares in the company for securing a claim, the status of the transferee of such equity shares.
If the general partner of a limited partnership company transfers his/her share to the company for the purpose of securing the claim, the transferee of the share is in a position to claim that he/she is a right holder of the share.
Article 183 of the Commercial Act, Article 271 of the Commercial Act, Article 269 of the Commercial Act, Article 180 of the Commercial Act, Article 197 of the Commercial Act
Plaintiff
Limited Partnership Company(s) and Fisheries Corporation(s)
Seoul High Court Decision 66Na3048 decided May 2, 1968
The original judgment is reversed, and the case is remanded to the Seoul High Court.
Judgment on the grounds of appeal by the Plaintiff’s attorney
According to the reasoning of the judgment below, the court below found the non-party's assertion that the non-party's share was transferred to the plaintiff on September 20, 1961 by the same defendant against the defendant limited partnership company. The non-party's share in the defendant limited partnership company was transferred to the plaintiff on September 20, 1961 and the non-party's general partner transferred to the plaintiff on September 20, 1961 and the plaintiff's claim for the execution of the procedure for the registration for the change of the member who became a general partner was transferred to the plaintiff on September 20, 1961. The non-party's claim that the non-party's share was purchased from the plaintiff on September 20, 1961 and transferred it to the non-party on September 20, 1961. The non-party did not have sufficient means to support the non-party's share in the defendant company, and the non-party provided the plaintiff with the share in the above one million won share as collateral and returned the plaintiff's share to the non-party's claim.
However, even if the transfer of shares between the plaintiff and the non-party is for the security of claims with the same content as the original judgment, if the plaintiff satisfies only other legal requirements. Thus, the plaintiff can seek confirmation against the non-party clearly denying the plaintiff's above status. (The legal relationship which the plaintiff seeks confirmation is interpreted to the above purport) and against the defendant limited partnership company, the plaintiff can claim the transfer of shares and claim the performance of the duty of registration of change of members. The defendant company can not refuse the above obligation of registration of change of members only on the ground that the plaintiff acquired shares of this case, and it is for the security of claims. According to the records, even if the plaintiff's transfer of shares was for the first day of September 28, 1967, the court below rejected the plaintiff's claim for direct sale, not for the security of claims, but for the security of claims. However, even if the purport was the transfer of shares by the security of claims, it is obvious that the plaintiff's claim for change of shares did not follow the previous judgment's obligation of registration of members. Thus, it cannot be viewed that the plaintiff's claim for change of shares was justified.
Therefore, without further proceeding to decide on other grounds of appeal, we reverse the original judgment and remand it to the Seoul High Court which is the original judgment. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices of the Supreme Court (Presiding Justice) Kimchi-bak (Presiding Justice)