[1] The method by which a third party becomes a partner of a limited partnership after the incorporation of a limited partnership

[2] The case holding that a partnership agreement between a representative partner who is a general partner of a limited partnership company and a third party is a membership agreement in which a third party invests an investment in a limited partnership company in light of its contents and intends to acquire the status of a newly limited partner

[1] After the incorporation of a limited partnership company, a third party becomes an employee of the limited partnership company, a method of acquiring the employee's shares from the existing employee through the employment of the limited partnership company and acquiring the employee's shares from the existing employee. The former employment method is a contract for sales of shares between the person who intends to enter a company and the existing employee.

[2] The case holding that a partnership agreement between a representative partner who is a general partner of a limited partnership company and a third party is not a contract for the share purchase that the third party pays to the representative member in consideration of its contents and takes over part of shares in the limited partnership company, but it is not a contract for the share purchase that the third party invests in the limited partnership company with the limited partnership company and intends to acquire the status of a newly limited partner.

[1] Articles 213, 268, and 269 of the Commercial Act / [2] Articles 48, 213, 268, and 269 of the Commercial Act

Plaintiff 1 and one other (Attorney Jeong Jong-soo, Counsel for the plaintiff-appellant)

Limited Partnership Co., Ltd. (Attorney Park Jong-sung, Counsel for the defendant-appellant)

Busan High Court Decision 2000Na13351 delivered on October 24, 2001

The part of the judgment of the court below concerning the claim for return of investment is reversed, and that part of the case is remanded to Busan High Court. The remaining appeals by the plaintiffs and the defendant are dismissed.

1. The lower court acknowledged the following facts by comprehensively taking account of the adopted evidence.

A. On February 198, Nonparty 1, who was a representative member of the Defendant Company as the general partner of the Defendant Company, proposed that the Plaintiffs would operate the Defendant Company as a partnership company by investing operating funds in the management fund, and that the Plaintiffs would operate the Defendant Company as a partnership company.

B. The Plaintiffs accepted Nonparty 1’s proposal and agreed to operate the Defendant Company as a partnership business, and Plaintiff 2 invested KRW 49,850,000 in total from May 19, 1998 to June 3, 1998, and Plaintiff 1 invested KRW 40,00,000 on June 16, 1998.

C. On June 16, 1998, the Plaintiffs invested KRW 20,000,00 in each of the 15,000,000 as well as KRW 15,00,00 as operating funds, and Nonparty 1 selected the Defendant Company with each of the 35,00,000,000 in each of the 35,000,000 in each of the 30s in each of the 35,000s in each of the 30s in each of the 35,000s in each of the 35,000s in each of the 35,

D. However, around June 20, 1998, prior to the conclusion of the above partnership agreement, on February 2, 1998, the plaintiffs notified the non-party 1 that he would terminate the above partnership agreement and retire the defendant company on the ground that the defendant company had already transferred the above credit accounts receivable to the non-party 2, and that he had concluded the above partnership agreement. The non-party 1 consented without raising any objection.

2. First, we examine the Plaintiffs’ grounds of appeal on the claim for return of investment amount.

A. Under the premise that Nonparty 1, the representative member of the Defendant Company, entered into the above partnership agreement on behalf of the Defendant Company, the Plaintiffs asserted that even if Nonparty 1 did not indicate that the above partnership agreement was for the Defendant Company pursuant to Article 48 of the Commercial Act, it would have an effect on the Defendant Company, and thus, sought a refund of KRW 15,000,000 to each of the Defendant Company by asserting that the above partnership agreement was effective. The lower court dismissed the Plaintiffs’ claim for refund of the amount of money invested by Nonparty 1, not the Defendant Company, but the Defendant Company, and Nonparty 1, as an individual, had an intention to act on behalf of the Defendant Company.

B. However, we cannot accept the judgment of the court below for the following reasons.

After the establishment of a limited partnership company, a third party becomes an employee of the limited partnership company by the method of acquiring the qualification of an employee from the existing employee and acquiring the shares of the existing employee. The former method of employment is a contract for the share between the employee and the existing employee.

According to the partnership contract between the plaintiffs and the non-party 1 (Evidence 3). The plaintiffs and the non-party 1 invested 20,000,000 won in the defendant company as the general partner of the defendant company, and the plaintiffs invested 15,00,000 won in the defendant company as the general partner of the defendant company, and take office as the limited partner of the defendant company. The share ratio of the defendant company is the non-party 140% and 30% of the plaintiffs. In light of the contents of the partnership contract, it is reasonable to view the above contract is not a share sales contract that the plaintiffs agreed to pay to the non-party 1 to the defendant company and to acquire part of the shares of the defendant company, but it is not a share sales contract that the plaintiffs will acquire part of the shares of the defendant company. Thus, the contract of this case was prepared in the name of the non-party 1 in the form of the non-party 1, but the part of the partnership contract of this case is the plaintiffs and the parties to the defendant company.

Nevertheless, the court below held that the parties to the above partnership agreement on the investment did not reach the defendant company as the non-party 1. In so doing, the court below erred by misapprehending the legal principles on the membership contract of limited partnership companies and the legal principles on the confirmation of the parties to the contract. The plaintiffs' grounds for appeal pointing this out are justified.

3. Next, the defendant's ground of appeal as to the claim for refund of operating funds and the plaintiff's ground of appeal as to the damages for delay of operating funds are examined.

A. In full view of the adopted evidence, the lower court acknowledged that Plaintiff 2 invested KRW 49,850,00 in the Defendant Company and KRW 40,000 in the amount of KRW 15,00,000,000 in the amount invested and used the remainder for the Defendant Company’s operating funds; the Plaintiffs agreed to return the advance payment when they retire from the Defendant Company; and the Plaintiffs sent proof of the contents that the Plaintiffs returned the amount of investment not returned to the Defendant Company until August 31, 1999, and the Plaintiff 2 received KRW 7,889,316 out of the aforementioned advance payment, and determined that the Defendant Company was liable to pay the Plaintiff 1 the amount of KRW 25,00,000,000 in the amount of KRW 15,00 in the amount of KRW 26,00,00 in the amount of KRW 296,00,00 in the amount of KRW 196 and the damages for delay on the following day.

B. According to the above agreement between the plaintiffs and the non-party 1 (Evidence A) as seen above, in addition to the obligation to contribute the amount of money as seen above to the defendant company, the non-party 1 agreed that the non-party 1 shall pay KRW 10,000,000, and the plaintiffs shall pay KRW 35,000,000 each to the defendant company as operating funds and return it at the time of the next settlement of accounts. In light of the contents of the agreement, the above agreement was prepared between the non-party 1 and the plaintiffs in form, but it was not a loan agreement for raising operating funds of the defendant company, but it is reasonable to view that the non-party 1 was a loan agreement that was concluded between himself and the plaintiffs to raise operating funds of the defendant company on behalf of the defendant company as a loan agreement for the purpose of raising operating funds of the defendant company.

Therefore, although the judgment of the court below is somewhat insufficient, it is acceptable to this purport, and there is no error of law such as lack of reason, contradiction of reason, and violation of the rules of evidence as otherwise alleged in the ground of appeal by the defendant.

C. At the time of the above business agreement, the plaintiffs agreed to refund the advance payment of the plaintiffs at the time of retirement. Thus, they asserted that they are obligated to pay damages for delay from June 20, 199, which is the date of retirement of the plaintiffs. However, the court below accepted only the claim for damages for delay after September 1, 1999, which is the day following the expiration of the above maximum period.

Examining the reasoning of the judgment below in comparison with the records, it is reasonable for the court below to recognize the defendant's delayed liability from the day after the lapse of the maximum period of return of the advance payment to the defendant since the defendant was not asserted and there is no evidence to prove that the defendant agreed to return the advance payment to the plaintiffs at the time of withdrawal of the plaintiffs at the time of entering into a loan agreement for consumption with respect to the above advance payment, but it constitutes not the date of withdrawal under the above agreement but the date of withdrawal under the above agreement.

4. Therefore, without examining the remaining grounds of appeal by the plaintiffs, the part concerning the claim for return of investment among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining grounds of appeal by the plaintiffs and the defendant are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Park Jae- Jae (Presiding Justice)