208Du481. Non-existence of a resolution at a general meeting of partners

△△△△ (x-xx)

Chuncheon Ethical Ethical Ethical Zone

Attorney Park Jong-won, Counsel for the plaintiff-appellant

-O of the limited company

Chuncheon x

Representative General Partners LOO

April 23, 2009

May 13, 2009

1. On December 26, 2005, the defendant's general meeting of members held on December 26, 2005, the resolution on expulsion of the plaintiff from limited partners and the refund of the share of KRW 7,500,000 is confirmed to be null and void.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

The following facts are either disputed between the parties, or acknowledged by the whole purport of the pleadings in each entry of Gap evidence 1 to 4, Gap evidence 1 to 5, Gap evidence 3, Gap evidence 5-1 to 3, Gap evidence 6, and Gap evidence 9-1 through 5.

A. The defendant company (which was established as the trade name of the original limited partnership company and changed to the defendant's trade name) is a limited partnership company established for the purpose of liquor wholesale business, official bottles collection and sales business, etc.

While the Plaintiff was in office as a general partner with unlimited liability of the Defendant Company, on March 3, 2005, transferred all shares to and retired from Nonparty Ha○○ on March 15, 2005, the Plaintiff acquired 7.5 million won out of the shares of Ha○○○ on March 15, 2005, and re-registered as a limited partner.

B. On March 3, 2005, Ha○○ became a general partner of the Defendant Company, and thereafter, Ha○○○○ (hereinafter referred to as the Defendant Company’s general partner of February 6, 2009) who was an infant of Ha○○○, was practically operating the Defendant Company.

In November 2005, the right ○○ solicited the Plaintiff to withdraw from the trust due to the failure of trust between the Plaintiff and the Plaintiff, but the Plaintiff did not comply with the request.

C. The original articles of incorporation of the Defendant Company provided for the expulsion of members as follows.

Article 18 (Adjudication of Expulsion) If a member of the Commission has any of the following reasons, this company may request a court to pronounce the expulsion of another member by a resolution of a majority of the members:

1. Where such member does not perform a duty to contribute;

2. Where he/she violates the duty of prohibition on concurrent operation by any partner;

3. Where he/she conducts business without authority or represents a company, when there is an unlawful act in the course of business or representative of the company;

4. Where there is any other important reason.

D. On December 2005, ○○○, without the court’s order of expulsion of a member, changed the part of the Articles of incorporation of the Defendant Company regarding the expulsion of a member so that all the members can be expelled only with the consent of the member, as seen below. On the end, the Defendant Company forged the Articles of incorporation by affixing seals affixed to the seals of the Plaintiff, the Plaintiff, and the Plaintiff, the Plaintiff, and the Nonparty ○○, and the Kim○○○, each of which are forged next to the designation, respectively, on the part of the Defendant Company.

Article 17 (Expulsion of Members) If the following reasons have occurred to a member, the member may be expelled with the consent of all the members:

1. Where such member failed to perform a duty to contribute;

2. If the company has caused loss to the company by executing its business without authority or by doing any unlawful act on behalf of the company;

13. When there exist any other serious causes, such as interfering with legitimate execution of duties by the company.

E. From among the employees of the Defendant Company, the general partner Ha○○○, the limited liability members’ right, and Park XX, which are the rest of the employees other than the Plaintiff (hereinafter “the instant resolution”) passed a resolution to recommend the Plaintiff with the consent of all members and refund 7.5 million won of the shares of the Plaintiff, as stipulated in the above forged articles of incorporation, at the general meeting of members held on December 26, 2005.

F. In addition, the right ○○ forged the articles of incorporation of the Defendant Company and forged the receipt certificate under the Plaintiff’s name that the Plaintiff was refunded KRW 7.5 million with the equity investment in the Defendant Company on December 26, 2005.

2. Judgment on the plaintiff's claim

In full view of the facts acknowledged earlier, the articles of incorporation of the defendant company originally stipulated that the expulsion of the members may be filed with the court by a majority of the remaining members. However, in order to recommend the plaintiff from a limited liability member, ○○○ forged the articles of incorporation of the defendant company to make the expulsion of the members possible without the court’s order for expulsion of the plaintiff, and the resolution of expulsion of the plaintiff based on the forged articles of incorporation was made. Thus, the resolution of this case is made by the forged articles of incorporation and is null and void. Furthermore, Article 220 of the Commercial Act, which is applicable mutatis mutandis under Article 269 of the Commercial Act, is a violation of Article 198(1) of the Commercial Act (Prohibition of Competitive Business of Members) if a member fails to perform his/her duty of investment, and if there is an improper act in relation to the management or representative of the company without the authority, and if there is any other important reason, the company did not allow the amendment of the above articles of incorporation procedures to the extent that it did not affect the interests of the members without the consent of the plaintiff.

3. Conclusion

Thus, as long as the defendant company is dissatisfied with the resolution of invalidation based on the forged articles of incorporation, the above resolution has a benefit to seek confirmation of invalidation. Thus, the plaintiff's claim of this case is justified.

Oral Jin (Presiding Judge)

Kim Shin

Handcarsia