[사원제명][집39(3)민,251;공1991.9.15.(904),2241]
In a limited partnership company with only one general partner and one limited partner, an expulsion of other members by one member’s will (negative)
Articles 220(1) and 269 of the Commercial Act provide that in case of a limited partnership company, if there are grounds for expulsion provided for in Article 220(1) and 269 among its members, a resolution of a majority of other members may be filed with the court for the declaration of expulsion. In light of the fact that the existence of more than two other members is premised on the existence of more than two other members other than the member subject to expulsion, and the purport and nature of the above declaration system, a resolution of a majority of other members shall not be made with respect to a limited partnership company consisting solely of one general partner and one limited partner, by the intention of one member.
Articles 269 and 220 of the Commercial Act
Attorney Shin-young et al., Counsel for the defendant-appellant
Defendant 1 et al., Counsel for the plaintiff-appellant-appellee-appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant
Seoul High Court Decision 90Na20512 delivered on November 15, 1990
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
The grounds of appeal No. 1 are examined.
Articles 220(1) and 269 of the Commercial Act provide that in case of a limited partnership company, if there are grounds for expulsion provided for in the provisions of the same Act among its members, a petition may be filed with the court for the declaration of expulsion of the said members by a majority of the other members. As the majority of other members are premised on the existence of more than two other members except the member subject to expulsion, as clearly stated in the text of the resolution, in the case of a limited partnership company consisting solely of only one general partner and one limited partner, the expulsion of other members cannot be made by the intent of one member.
In addition, when only two limited partners and limited partners are made up of only two general partners, the expulsion results in dissolution of the company in accordance with Article 285(1) of the Commercial Act. In light of Article 220(1) of the Commercial Act that the reason for recognizing the expulsion of a member is not the reason for the expulsion of a company in the state of dissolution, not the company, but the company's dissolution and establishment by promoting the continuation of the company. In addition, recognizing the expulsion of another member by one's own will violates the above purport, and the expulsion goes against the above purpose, and is an emergency means to deprive the qualification of a member, and thus, it is consistent with the nature of the system itself that the expulsion requires careful procedure. If not interpreted, there is a risk of division in the company by a minority.
Therefore, the non-party who is a partner with limited liability and the plaintiff who is a limited partnership company comprised of two members, including the defendant, cannot seek a declaration of expulsion from the defendant by a resolution of the above non-party.
In this regard, the court below rejected the plaintiff's claim to the same purport is just and without merit, and therefore, the remaining grounds of appeal are dismissed without examining the remaining grounds of appeal, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating judges.
Justices Lee Woo-soo (Presiding Justice)