[1] Whether withdrawal of a cooperative under Article 716 of the Civil Act is based on the premise that the remaining union members continue to maintain and continue the business (affirmative)

[2] The effect of the demand for dissolution of an association under Article 720 of the Civil Code and the meaning of "inevitable reasons" as the requirement for such demand

[3] The case holding that where a part of the partnership's members discontinue its business and claim damages including the return of money invested, etc. against another union member, it is actually a claim for dissolution of the partnership

[4] The method of distributing the remaining property in a case where a partnership is dissolved and a partner's debt repayment business is not completed

[5] In the case of dissolution of partnership, the scope of residual property subject to distribution and the standard point of time for appraisal of its value (=the time of termination of liquidation procedure)

[1] Article 716 of the Civil Act / [2] Article 720 of the Civil Act / [3] Article 720 of the Civil Act / [4] Articles 720 and 724 of the Civil Act / [5] Articles 720 and 724 of the Civil Act

[2] Supreme Court Decision 90Meu26300 delivered on February 22, 1991 (Gong1991, 1065) Supreme Court Decision 92Da21098 delivered on February 9, 1993 (Gong1993Sang, 935) Decision 95Da4957 delivered on May 30, 197 (Gong1997Ha, 1987)

Plaintiff 1 and one other (Law Firm Sejong, Attorneys Kim Hyun-tae et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Gangnam-gu, Counsel for defendant-appellant)

Seoul High Court Decision 2006Na3303, 3310 decided June 13, 2007

Of the part against the Plaintiff (Counterclaim Defendant) 1 of the lower judgment, the part on KRW 26,381,928 and damages for delay thereof are reversed, and that part of the case is remanded to Seoul High Court. The remaining appeals by Plaintiff (Counterclaim Defendant) 1 and the appeals by Plaintiff (Counterclaim Defendant) 2 are all dismissed. The costs of appeal by Plaintiff (Counterclaim Defendant) 2 are assessed against the said Plaintiff (Counterclaim Defendant).

The grounds of appeal are examined.

1. As to the allegation that the partnership relationship of this case terminated on January 17, 2004

A. According to Article 716 of the Civil Act, a cooperative member may, in principle, withdraw at any time when the term of a cooperative is not specified, and even when the term of a cooperative is specified, a cooperative member may withdraw if there is an inevitable reason. Here, a cooperative withdrawal goes beyond the status of a cooperative member in the future. In this case, the cooperative itself maintains the identity of the union member and continues to exist by the other union member, and therefore, withdrawal is based on the premise that the remaining union member continues to maintain and continue to conduct a partnership business.

According to the evidence adopted by the court below, on December 16, 2003, 14 days after the opening of the business, the plaintiff (Counterclaim plaintiff; hereinafter "the plaintiff") requested correction from the defendant (Counterclaim plaintiff; hereinafter "the defendant") by taking into account the minor defendant's violation that occurred in relation to the change of tenant's name, business report, business registration, Internet banking, etc. in the course of preparing the business, and if not corrected, the defendant shall be deemed to have withdrawn from his/her business. The defendant shall be deemed to have paid 200 million won as damages, such as premium, facility replacement and interior cost, main disaster prevention fee, worker's salary, consolation money, etc. by the plaintiff's 14 days after his/her opening of the business, and the plaintiff 1 sent a reply to the defendant's withdrawal from the business on January 2, 2004 only once, and it is difficult to view that the plaintiff 1's temporary cancellation of business registration had been made under the defendant's consent to the cancellation of the business's remaining business.

B. Meanwhile, Article 720 of the Civil Act provides that each partner may demand dissolution of a cooperative, and the claim for dissolution of the cooperative refers to a case where the objective of the cooperative is to suspend active activities to extinguish the cooperative, enter the stage of arranging the property of the cooperative, and the "inevitable reason" refers to an objective circumstance where it is deemed that it is difficult to achieve the objectives of the cooperative due to the aggravation of the property status of the cooperative due to changes in the circumstances of the economic community or the aggravation of its business, etc., or where it is difficult to expect smooth operation of the cooperative's business due to the destruction of trust relationship due to the deterioration or separation between the parties to the cooperative (see Supreme Court Decision 95Da4957, May 30, 197).

The court below acknowledged the facts based on the evidence it adopted, and found that the plaintiffs could not be deemed to have any inevitable reason to continue the cooperative business relationship between the plaintiff and the defendant merely because the plaintiffs merely discontinued the business on January 17, 2004, and it cannot be deemed that there was an inevitable reason to make it difficult for them to continue the cooperative business relationship between the plaintiff and the defendant until the plaintiffs unilaterally discontinued the business of the cooperative business, and there was a minor dispute between the plaintiff and the defendant as a member before the plaintiffs unilaterally discontinued the business operation of the cooperative. After the commencement of the business, the plaintiff's complaint against the defendant first and the two parties were filed a criminal complaint against the defendant. In particular, the plaintiffs' unilaterally suspended the business without the defendant's objection, and thus, the plaintiffs' trust between the defendant and the defendant could no longer expect the smooth operation of the cooperative business. Accordingly, the plaintiffs' claim for damages including the return of the investment, etc. through the complaint of this case, which is in violation of the rules of evidence or the judgment of the court below as to the defendant's non-existence of this case.

2. As to the assertion on the distribution of residual property

(a) Criteria and time for appraising distribution property;

In the event of dissolution of a partnership, unless there is a separate agreement between the parties, a liquidation procedure shall not be conducted as a common case or as a remaining business of the partnership. However, if only the distribution of residual property remains, a separate liquidation procedure shall not be followed, and the remaining property shall be distributed in proportion to the value of the investment of each association member, unless there is a separate special agreement among the association members. Thus, even if the repayment of partnership debts is not completed, if the creditor is a union member, the person who holds the assets of the partnership shall deduct the partnership debts of the union members from the assets of the partnership and calculate the amount of residual property subject to distribution, and then the other union members shall be able to refund the share in proportion to the value of the investment of each association member among the remaining property and distribute the remaining property fairly in a simplified manner

In addition, in the case of dissolution of a partnership, the scope and the value of the residual property to be distributed to partners shall be determined only after the liquidation procedure is completed, so the appraisal of the value shall be determined as of the time of completion of the liquidation procedure, and on the other hand, the debts that the partnership continues to exist within the scope of the purpose of liquidation, i.e., the debts of the partnership, as the debts of the partnership, shall be

The court below is just in finding that the defendant, in accordance with such legal principles, transferred all business rights, including the right to lease of the store of this case, to another person to dispose of the property of the association on December 24, 2004, 20,000 won including the compensation and electricity charges, etc. borne by the defendant until that time while distributing the property based on the property status as of December 24, 2004, and there is no violation of the rules of evidence

B. The fact that operating expenses for the plaintiff 1 are deducted from the residual property

With respect to the total amount of residual property distribution, the court below determined that the defendant's active property at the time of liquidation of the partnership of this case is KRW 85 million, including the right to lease and goodwill of the store of this case and the premium of this case, and that the small property of the partnership of the same case is KRW 26,381,928, which was not appropriated as profits from the operation of the store of this case by the plaintiff 1, the operating expenses of the partnership of the same case constitute the obligation of the plaintiff 1 of the partnership of the same case, and that the above operating expenses are 20,861,200 won in total for the business of the partnership of the partnership of the same case before the dissolution of the association of this case and the maintenance and management of the store of this case, 30,861,20 won in total for the above remaining property of the association of the same case 20,800 won in total, 37,2480,780 won in residual property of the association of this case.

However, in light of the facts established by the court below and the above legal principles, operating expenses claims 26,381,928 won for the partnership of Plaintiff 1's employees are deducted from the active property of the partnership of the partnership of the partnership because they fall under the obligations of the partnership of the union members when calculating the amount of residual property subject to distribution, and as a result, the defendant who holds the company's property continues to own the corresponding properties of the partnership. In such a case, the person who holds the company's assets without undergoing separate liquidation procedures distributes the residual property to the partner who is the creditor of the company'

Nevertheless, the judgment of the court below which held that the remaining assets should be distributed in proportion to the value of Plaintiff 1’s investment after considering Plaintiff 1’s obligations as the small assets of the partnership, and only the remaining assets should be distributed in proportion to the amount of Plaintiff 1’s investment. Thus, the court below erred by misapprehending the legal principles on the distribution of remaining assets due to the termination of partnership relations, which affected the conclusion of the judgment.

Therefore, although the plaintiff 1's appeal pointing this out has merit, the appeal by the plaintiff 2 is without merit.

3. Conclusion

Therefore, the part of the judgment of the court below against Plaintiff 1 is reversed, and that part of the case is remanded to the court below. The remaining appeals by Plaintiff 1 and the appeal by Plaintiff 2 are dismissed. The costs of appeal by Plaintiff 2 are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)