[1] Whether the validity of the extinguishment of the claim due to the deposit is retroactively extinguished in a case where the repayment depository collects the deposited article by exercising the right to recover the deposited article (affirmative), and whether the deposited article is also included in the case where the third party collects the deposited article by obtaining the seizure and collection order as to the claim to recover the deposited article from the depositor (affirmative)

[2] In a case where the articles of incorporation provide for the joint representation of a company by several members, but such failure is not registered, whether a joint representative member may oppose a third party acting in good faith on the ground that the act of representation by one of the joint representative members alone violates the articles of incorporation (negative

[3] The legal nature of “right to claim the withdrawal of a member’s share” under Article 224(1) of the Commercial Act / Whether a member or a creditor may unilaterally withdraw his/her intent of withdrawal after the validity of the withdrawal (negative), and whether the same applies to cases where a member paid his/her obligation to a creditor after the validity of the withdrawal (affirmative)

[1] Where the repayment deposit is legitimate, the effect of the repayment takes effect when the creditor made the deposit, regardless of whether the creditor made the claim for the withdrawal of the deposited article, but where the repayment deposit collects the deposited article by exercising the right to withdrawal of the deposited article, it shall be deemed not to have made the deposit, and the effect of the extinguishment of the claim retroactively becomes retroactively null and void. This includes not only the case where the deposit was made by the depositor, but also the case where the deposit was recovered by the execution after the third party received the seizure and collection order for the claim for the withdrawal of the deposited article with the title of the separate title of the claim against the depositor.

[2] According to Articles 269, 180 subparag. 5, 209, and 37 of the Commercial Act, a member representing a company has the right to do all judicial or extrajudicial acts with respect to the business of the company, and where the articles of incorporation stipulate that two or more members jointly represent the company, but failed to register such matters, even if one of the joint representative members acts on behalf of the company, the representative act does not constitute a violation of the articles of incorporation, and thus, it cannot be asserted against a bona fide third person who asserts the validity of the above representative act.

[3] Article 224(1) of the Commercial Act, which applies mutatis mutandis to a limited partnership company pursuant to Article 269 of the Commercial Act, provides, “A creditor who seized a member’s share in the company, may withdraw the member’s share at the end of a business year. However, the company and its member shall give an advance notice six months prior to the retirement.” Paragraph (2) of the same Article provides, “Where a member makes payment or provides a reasonable security, the prior notice shall lose its effect.” The purport of the proviso of Article 224(1) of the Commercial Act is to: (a) the creditor of the member can liquidate the member’s share only with the consent of other members pursuant to Article 197 of the Commercial Act even if the creditor of the member seizes the member’s share in the company, and can collect the member’s share by the refund of the share so that the creditor can unilaterally withdraw the member’s share in the company by unilateral declaration of intent; and (b) the foregoing provision is effective even if the member voluntarily withdraws from the company’s share at the end of the business year or the company.

[1] Articles 487 and 489 of the Civil Act / [2] Articles 37, 180 Subparagraph 5, 209, and 269 of the Commercial Act / [3] Articles 197, 224, and 269 of the Commercial Act

[1] Supreme Court Decision 80Da77 delivered on February 10, 1981 (Gong1981, 13677) Supreme Court Decision 2001Da2846 delivered on December 6, 2002 (Gong2003Sang, 302)

Plaintiff (Law Firm Seo-gu, Attorneys Lee Jae-do et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Han, Attorneys Min Byung-young et al., Counsel for the defendant-appellant)

Daejeon High Court Decision 2012Na11257 decided August 28, 2013

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

The grounds of appeal are examined.

1. As to the defects in recovering the deposit money

A. Where the deposit for performance is legitimate, the performance takes effect when the creditor made the deposit regardless of whether the creditor made a claim for the withdrawal of the deposited article (see Supreme Court Decision 2001Da2846, Dec. 6, 2002). However, where the repayment deposit collects the deposited article by exercising the right to withdrawal of the deposited article, the performance deposit shall be deemed not to have been deposited, and the effect of the extinguishment of the deposited article shall be deemed to be retroactively null and void retroactively. As such, the collection of the deposited article, which retroactively terminates, includes not only the case made by the deposit but also the case where the deposited article is collected by the third party with the separate title of the claim against the deposit holder by obtaining a seizure and collection order for the claim for withdrawal of the deposited article (see Supreme Court Decision 80Da777, Feb. 10, 1981).

In addition, according to Articles 269, 180 subparag. 5, 209, and 37 of the Commercial Act, a member representing a company is entitled to all judicial or extra-judicial acts in connection with the business of the company, and where the articles of incorporation stipulate that two or more members shall jointly represent the company, and where the articles of incorporation do not register it, even if one of the joint representative members acts on behalf of the company, it cannot be asserted against a third person acting in good faith who asserts the validity of such representative act on the ground that such representative act violates the articles of

B. According to the reasoning of the lower judgment, the lower court determined that: (a) the instant lawsuit was filed against the Plaintiff, who is a general partner and representative member of a limited partnership company (hereinafter “daily transport”) against the Defendant, who is another general partner and representative member; (b) Nonparty 2, a creditor of Nonparty 1, who is the Plaintiff and the Plaintiff’s husband, is seized the shares of the Plaintiff and Nonparty 1’s Japanese transport; (c) on March 13, 2012 pursuant to Articles 269 and 224 of the Commercial Act, the Plaintiff and Nonparty 1 claimed a withdrawal from the Plaintiff and Nonparty 1 on June 4, 2012; and (d) on November 15, 2012, the Plaintiff deposited the total amount of the principal and interest of Nonparty 2 and the Plaintiff’s joint and several obligations on November 15, 2012, which were collected on behalf of the Plaintiff and Nonparty 2 on December 21, 2012.

Furthermore, the lower court rejected the Plaintiff’s assertion that: (a) although Nonparty 1 deposited the full amount of principal and interest on the debt to Nonparty 2 on November 15, 2012; (b) prior to Nonparty 2’s payment of the said deposit, the Defendant recovered the said deposit on December 7, 2012, and thus Nonparty 1’s deposit and the effect of repayment was retroactively extinguished; (c) even if the Defendant recovered the deposit on behalf of himself/herself in violation of the articles of incorporation stipulating the purport of the joint representative in violation of the joint representative’s articles of incorporation, even if the purport of the joint representative was not registered, as long as the purport of the joint representative in the commercial register of the daily transportation cannot be asserted against bona fide third party, such as the registered public official who trusted the commercial register, and thus, it cannot be deemed that the said collection order was unlawful or ineffective; and (d) the effect of the withdrawal company’s deposit was extinguished by Nonparty 1’s advance payment deposit.

C. In light of the above legal principles and the records, even if Nonparty 1 deposited his debt with Nonparty 2 after the notice of the above withdrawal, it is reasonable for the court below to reject the Plaintiff’s assertion that there was a gross negligence on the part of the deposit officer in the collection of deposit money, even if the deposit was recovered before the end of the business year of the first transportation, and the validity of the deposit for repayment was extinguished. In full view of the records, as alleged in the grounds of appeal, it does not reveal any circumstance supporting the fact that Nonparty 1 implicitly expressed his intention to waive the right to claim the recovery of deposit against Nonparty 2 or Nonparty 2 expressed his intention to jointly represent the Defendant with the knowledge that the purpose of the joint representative was prescribed in the articles of incorporation of the first transportation. Accordingly, the judgment of the court below is justifiable, and contrary to what is alleged in the grounds of appeal, there is no error of law by misapprehending the legal principles on the collection of deposit money

2. As to the interpretation and application of Article 224 of the Commercial Act

A. Article 224(1) of the Commercial Act, which applies mutatis mutandis to a limited partnership company by virtue of Article 269 of the Commercial Act, provides that “A creditor who seized a member’s share in the company, may retire at the end of a business year; however, he/she shall give an advance notice to the company and its member six months prior to the retirement.” Article 224(2) of the Commercial Act provides that “Where a member makes payment or provides adequate security, the prior notice shall lose its effect.” The purport of the proviso of Article 224(1) of the Commercial Act is to: (a) the creditor of the member seizures a member’s share in the company, taking into account the fact that it can be realized only with the consent of other members pursuant to Article 197 of the Commercial Act even if the creditor of the member seizures the member’s share in the company, his/her right to claim the withdrawal of the member’s share can be made unilaterally by the member’s unilateral declaration of intention, and thus, the right to claim the withdrawal of the member can be made at the end of the business year.

The allegation in the grounds of appeal is that the validity of the withdrawal shall be retroactively extinguished in the event a member pays his/her obligation to his/her creditor who has exercised his/her right to claim the withdrawal of a retirement after the existence of the existence of the right to claim the withdrawal of a retirement. However, it is not acceptable because it is against the nature of the formation right and the other party's sole act, since the withdrawal of the right to claim the withdrawal should be recognized based on

B. As seen earlier, barring any circumstance to support the fact that Nonparty 2 in collusion with Nonparty 2 caused the Defendant to recover the above deposit money, it cannot be deemed that recognizing the Plaintiff’s intention of withdrawal was unjustly sacrificeing the ideology of the limited partnership company’s maintenance and existence, or the obligee’s own waiver of the right to receive protection under Article 224 of the Commercial Act, and the purport of rejecting the Plaintiff’s assertion is to determine that the effect of the deposit due to the collection of deposit money was retroactively extinguished. Therefore, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles or failing to exhaust all necessary deliberations.

C. Meanwhile, the grounds of appeal asserted that Article 224(1) of the Commercial Act provides that the court below erred by misapprehending the legal principles on the constitutional interpretation of Article 224 of the Commercial Act, where the court below held that a member automatically retires at the end of a business year without exception in cases where the member's prior notice of withdrawal under Article 224(1) of the Commercial Act exists and the member's intent to repay is acknowledged by objective evidence, and even after the end of a business year, the member's actual repayment is extinguished by the creditor's actual repayment, the seizure of the member's shares is rescinded, and the compulsory execution procedure is completed.

① However, it cannot be deemed that the freedom of occupation, property rights, and management rights of members should be protected more preferentially than the property rights of creditors of the members. ② The granting of the right to retire to the creditors of this member under Article 224(1) of the Commercial Act is difficult due to the characteristics of the limited partnership company or unlimited partnership company. ③ Members have sufficient time to provide repayment or security for not less than 6 months until the end of the business year of the company even if a prior notice of withdrawal was given by creditors. In this case, even in this case, the Plaintiff could have finally extinguished the validity of the prior notice of withdrawal by directly paying to Nonparty 2 or giving waiver of the right to recover the deposit money and depositing the deposit money before the prior notice of withdrawal takes effect. ④ The fact that the first withdrawal is not recognized after the legal effect already takes place to the members, which is common legal principles on the formation right as well as the right to claim retirement, ⑤ It cannot be viewed that the remaining portion of the company's property rights cannot be deemed as being infringed by Article 714(2) of the Commercial Act.

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 Jo Hee-de (Presiding Justice)