[Judgment of the court below]

Defendant (Law Firm Cheongn, Attorneys Oh Jeong-hwa et al., Counsel for defendant-appellant)

May 15, 2014

Ulsan District Court Decision 2013Gahap2555 Decided November 21, 2013

1. The part concerning the conjunctive claim in the judgment of the first instance shall be revoked;

2. The action for the conjunctive claim shall be dismissed; and

3. The costs of lawsuit shall be borne by the Plaintiff in both the first and second instances.

In light of the purport of the claim, as of June 12, 2013, the Defendant confirms that there is no membership right of the general partnership company ○○○○○○ Sales Company (hereinafter “non-party company”). In addition, the Defendant’s loss of the right of execution against the non-party company is determined.

The purport of appeal: To revoke the part concerning the conjunctive claim in the judgment of the court of first instance, and dismiss the plaintiff's claim (as the plaintiff only appealed against the judgment of the court of first instance which rejected the lawsuit concerning the main claim and accepted the conjunctive claim, only the conjunctive claim becomes the scope of the trial for the first instance).

1. Basic facts

The following facts are not disputed between the parties, or may be admitted as a whole to the entries in Gap evidence Nos. 1, 16, 48, and Eul evidence No. 29.

A. The non-party company is a partnership company established on June 25, 197 for the purpose of selling bottled products and ancillary business. The defendant has been in charge of performing its duties as the representative member of the non-party company from around 1997 (Provided, That this Court Order 2013Ra203 dated March 17, 2014 was suspended until this decision became final and conclusive).

B. After the establishment of the non-party company, the defendant, the non-party 1, and the non-party 2 were in charge of performing duties as an executive partner. After the death of the non-party 2 on September 16, 2010, the plaintiff (the business officer) is in charge of performing duties together with the defendant and the non-party 1 (the accounting officer). The employees of the non-party company are six persons including the plaintiff, the non-party 3, the non-party 4, and the non-party 5.

C. The provisions pertaining to this case in the articles of incorporation of the non-party company (amended as of March 24, 201) are as follows (Article 8, 11, and 17-(7) are added to the middle of June 20, 197 without the first articles of incorporation (Evidence A No. 48).)

(1) Where a member of the Association intends to enter into an agreement with a company on his account or on account of a third party, he shall obtain a resolution of a majority of other members. (2) A representative member shall represent the company. The management officer shall represent the company. (1) The management of affairs of the company shall not be conducted by the defendant, the non-party 1, and the plaintiff. (2) Where there is an objection against the management of affairs by other members, this shall not apply. (3) If there is an objection against the other members of the Association, the company shall immediately suspend such act and enter into force by a resolution of the majority of the managing members. (4) If there is an objection against the management of affairs by the other members of the Association. Article 11 (Loss of Power of Managing Members)

2. As to the legitimacy of the conjunctive claim

A. Relevant legal principles

The Commercial Act, as a screening for a human company, prescribes that the essence of a partnership company’s legal relationship is divided into an internal relationship and an external relationship (Article 195 of the Commercial Act). Since internal relationship between a company and its members, such as the relationship between the company and its members, and the relationship between its members, should be applied to the principle of private autonomy or freedom of contract, the provisions of the Commercial Act pertaining thereto, in principle, are applicable only when the articles of incorporation do not expressly stipulate in its articles of incorporation. The main provisions of the Commercial Act are as follows.

In other words, unless otherwise provided in the articles of incorporation, the management of affairs by an unlimited partnership company shall be in charge of each partner, and if other members raise an objection with respect to the management of affairs, immediately suspend such act and determine by a resolution of a majority of all the members (Article 200 of the Commercial Act). If one or more members are determined by the provisions of the articles of incorporation as managing members, each managing member has the right and duty to execute affairs, and if other managing members raise an objection, the other managing members shall immediately cease such act and determine by a resolution of a majority of the managing members (Article 201 of the Commercial Act). Except where the provisions of the articles of incorporation provide for joint managing members (Article 195 of the Commercial Act; Article 706(2) of the Civil Act). On the other hand, it constitutes a resolution of the general meeting of partners or a majority of managing members with respect to the management of affairs in accordance with the articles of incorporation (Article 205 of the Commercial Act; Article 201 of the Commercial Act; Article 208(2) of the Civil Act provides that the procedures for the management of unlimited shall be excluded from the above.

B. Determination

First of all, considering the characteristics of the partnership company's internal relationship, the discretionary provisions of the relevant provisions of the Commercial Act, and the contents of the articles of incorporation of the non-party company, which comprehensively and specifically provides for the whole internal relationship of the non-party company, as a whole, the provisions of the above articles of incorporation emphasizing the aspect of the private autonomy as a whole should be applied first by requiring a strict procedure, instead of the provisions of the Commercial Act which requires the "resolution of the general partner" (excluding the managing member in interpretation thereof)" as a requirement for the "resolution of the court at the request of each member" in the case of the non-party company in need of deprivation of the executive partner's authority for common reasons under Article 205 of the Commercial Act and Article 11 of the articles of incorporation, such as in the case of the non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's internal relationship, or the above provisions can be interpreted differently in light of good customs and other social order.

The above conclusion may be supported by circumstances. The essence of Article 205 of the Commercial Act is consistent with the provisions of the articles of incorporation or the principle of loss of executive authority by the consent of all the members, and it is not particularly unreasonable because it is possible to modify the requirements through an amendment of the articles of incorporation. In a case where the provisions of Article 205 of the Commercial Act are not the provisions of Article 11, the non-party company's executive authority can be disputed regularly and collectively on the grounds that there are grounds for loss of executive authority of the managing member, and it can be remarkably limited not only to the execution of the company, but also to the private autonomy as a human combination. Notwithstanding the provisions of Article 11 of the Articles of incorporation, it is difficult to view that permitting the above provisions to be purport of Article 11 of the Articles of incorporation and Article 3 of the Addenda to be contrary to the purport of Article 10 of the Commercial Act (the above provisions on loss of executive authority by a resolution of the managing member is also an important reason for removal of all the members, as well as the purport of Article 10 of the Articles of the Commercial Act.

Therefore, it is deemed that Article 11 of the above articles of incorporation is prepared in an alternative manner to the provisions of the articles of incorporation, which are autonomous norms, taking into account the provisions and purport of Article 205 of the Commercial Act, which constitutes a discretionary law. It is reasonable interpretation of the intent of the non-party company members included in Article 11 of the

Therefore, even if there is no assertion and proof as to the existence of exceptional circumstances as seen earlier, the plaintiff, who is only one of the members of the non-party company, may seek the loss of the defendant's right to execute its duties by a resolution of all the members as stipulated in Article 11 of the Articles of Incorporation, unless there is any other ground for non-performance of duties, and the plaintiff cannot immediately claim it to the court without disregarding it. Thus, the preliminary claim is unlawful because there is no legal ground or lack

The defendant's defense pointing this out is justified.

3. Conclusion

The judgment of the court of the first instance that cited the conjunctive claim in this case should be dismissed in an improper manner. Thus, the judgment of the court of the first instance that cited the defendant's appeal and revoked the judgment of the court of the first instance and dismissed the lawsuit concerning the conjunctive claim.

Judges Yang Sung (Presiding Judge)