Gwangju Trade Limited Partnership (Law Firm Subdivision, Attorney Kim Shin-chul, Counsel for the plaintiff-appellant)

Defendant (Attorney Kim Sung-sung, Counsel for the defendant-appellant)

September 11, 2015

Gwangju District Court Decision 2013Gahap2445 Decided October 24, 2014

1. The plaintiff's appeal shall be dismissed.

2. The costs of appeal are borne by Nonparty 1 (the date of birth omitted) (the date of birth omitted) and Gwangju Northern-gu (the address omitted).

The portion of the judgment of the court of first instance against the plaintiff falling under the following order to pay shall be revoked. The defendant shall pay to the plaintiff 173,910,550 won with 5% interest per annum from May 1, 2009 to the date of this judgment, and 20% interest per annum from the next day to the date of complete payment (the purport of appeal has also been reduced within the extent of its purport by reducing the purport of appeal by reducing the purport of the claim as above through the application for changes in the purport of the claim and the cause of the claim made on July 6, 2015.

1. Basic facts

○ The Plaintiff is a limited partnership company established on June 28, 1979 for the purpose of the taxi passenger transportation business, etc., and the Defendant is a person who is a representative member of the Plaintiff and performed his duties until he becomes unable to perform his duties as he was ordered to suspend his duties as he was appointed on November 27, 2001 after he became a general partner of the Plaintiff on June 30, 199 and was appointed as a representative member on November 27, 2001.

Article 30 of the Plaintiff’s articles of incorporation provides that “The Plaintiff’s settlement of accounts shall be settled by the end of February of each fiscal year; the Plaintiff’s settlement of accounts shall be made by preparing a proposal on the disposition of lists of assets, balance sheets, income statements, business reports, and profits and losses; and shall submit it to the general meeting of members for approval after undergoing audit by the auditor within one month; and Article 32 provides that “The ratio of each member’s distribution of profits and losses to the amount of investment as stated in Article 7 shall correspond to the ratio of the amount of investment as stated in Article 7.” However, the Defendant did not hold a general meeting from 20

The plaintiff's employee non-party 1 and non-party 2 filed a lawsuit against the defendant against the defendant to lose the executive partner's authority as the Gwangju District Court 2009Gahap6266, and on October 22, 2009, the above court sentenced the defendant's decision that the defendant violated the duty under Article 30 of the articles of incorporation due to the defendant's failure to properly perform his/her duties concerning accounting and settlement of accounts for a considerable period of time. The above decision was finalized on December 13, 2012 (Seoul High Court 2009Na6577, Supreme Court 2010Da82189).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 5 and 6 (including additional numbers), the witness of the first instance court, the testimony of non-party 3 and non-party 1, and the purport of the whole pleadings

2. Plaintiff’s request

A. The defendant, who is an executive partner of the plaintiff's representative 3.1,00 won (=non-party 4 and non-party 5) totaling 42,950,00 won for 1,970 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 3,00 won for 205,00 won for 20,000 won for 20,000 won for 20,000 won for 3,00,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,00 won for 20,000 won for 20,00 won for 200 won for .

B. Therefore, the Defendant is liable for damages arising from nonperformance or tort regarding the Plaintiff’s total amount of KRW 173,910,550 (i.e., KRW 42,950,000 + KRW 130,960,550) (i.e., KRW 173,950), which is the sum of the aforementioned legal costs and the amount of additional tax collected by the Defendant (i.e., KRW 173,950,00). (ii) The Plaintiff was liable for damages due to nonperformance or tort (i.e., the Plaintiff maintained its identity

3. Determination on this safety defense

A. Determination as to the non-litigation agreement defense

First of all, the defendant asserts that the lawsuit of this case is unlawful in violation of the non-committee agreement dated January 31, 2007.

According to the evidence No. 4, the plaintiff, the defendant, and the non-party 4 "A," and the non-party 1, the non-party 6, the non-party 7, the non-party 8, the non-party 8, and the non-party 2 "B," and the non-party 1, the non-party 7, the non-party 8, the non-party 8, and the non-party 2 agreed to the effect that Eul would not raise an objection against the defendant with respect to all kinds of taxes and accounting of the company from January 1, 1997 to January 31, 207, and that Eul would not raise an objection against the defendant, and there is no other evidence to support the non-party 1, the non-party 6, the non-party 7, the non-party 8, the non-party 2, the plaintiff and the non-party 4.

Therefore, the defendant's defense of the above principal safety is without merit.

B. Determination of the illegality of an appeal

(1) The defendant's assertion

On June 28, 2009, the Plaintiff appointed Nonparty 1 as a liquidator even after the Plaintiff was dissolved upon the expiration of the period of existence, and Nonparty 1, registered as the Plaintiff’s liquidator, filed an appeal even though he is not a legitimate representative authority or an operating authority of the Plaintiff. Thus, the Plaintiff’s appeal asserts that it is unlawful.

(2) Facts of recognition

○ The Plaintiff was established on June 28, 1979, and registered 30 years from the date of incorporation registration due to its duration or reason for dissolution. Article 5 of the Plaintiff’s articles of incorporation provides that the period of existence of the Plaintiff shall be 30 years from the date of establishment of the Plaintiff and may be extended upon a resolution of all the members. The Plaintiff registered on October 8, 2014 that the company was dissolved due to the expiration of the period of existence on June 28, 2009.

○ The Plaintiff was a general partner with unlimited liability and Nonparty 4, and Nonparty 4 died on May 12, 2014, before the first instance court rendered a judgment after filing the instant lawsuit.

On August 8, 2014, the defendant, who is a general partner, the non-party 9, the non-party 10, the non-party 11, the non-party 2, the non-party 12, the non-party 13 and the non-party 14, who is a limited partner with limited liability, among the plaintiff's members, attended the plaintiff's general meeting of members and elected the defendant who is a general partner with unlimited liability to the Speaker pro tempore, and decided with the consent of all the members present at each meeting to select the non-party 1 as the case of subparagraph 1, the case of abolition of Article 5 of the articles of incorporation set the duration of the company among the cases of subparagraph 2, the case

○ The Plaintiff registered on October 8, 2014 that Nonparty 1 was appointed as a liquidator on August 8, 2014.

○ The Plaintiff’s liquidator Nonparty 1 filed an appeal against the judgment of the first instance court on November 11, 2014, and around December 19, 2014, the Plaintiff’s liquidator granted his/her power of attorney to the branch of the law firm branch.

[Reasons for Recognition] Facts without dispute, Gap evidence 2, 34, Eul evidence 27 (including each number), the purport of the whole pleadings

(3) Determination

(A) On the other hand, the key issue of this part of the judgment on this part of this case's defense depends on whether to deny the validity of appointment of the liquidator to Nonparty 1 or whether to recognize the validity of appointment of the liquidator to continue the company by focusing on the continuation of the company among the contents of the resolution of the general meeting of members of the Plaintiff company on August 8, 2014.

Therefore, the Plaintiff, a limited partnership company, is dissolved due to the expiration of the term of existence (Article 227 subparag. 1, Article 269 of the Commercial Act), and the Plaintiff may continue to exist with the consent of all or some of its members (Article 229(1) of the Commercial Act). In the case of a limited partnership company, unlike the case of a corporation requiring a special resolution of the general meeting of shareholders (Article 519 of the Commercial Act), the Plaintiff does not require a resolution of the general meeting of shareholders, etc. in the continuation of the company. Therefore, the Plaintiff may continue to exist with the consent of all or some

As seen earlier in the factual basis, the Plaintiff’s employees held a general meeting of partners on August 8, 2014 and resolved to continue the company and abolish the articles of incorporation provisions stipulating the period of existence of the company. As such, the Plaintiff was dissolved upon the expiration of the period of existence, but the Plaintiff continued to exist as of the date of the above general meeting of partners with some consent of the members.

(B) However, the plaintiff continued the company by a resolution of the above general meeting and appointed the non-party 1 as a liquidator to continue the company, and further examined the legal effect of the appointment.

A company is dissolved upon the expiration of its term of existence and can only conduct liquidation affairs if it is dissolved (see Supreme Court Order 67Ma659, Apr. 22, 1968). In addition, in the case of continuing a company, the dissolved company shall return to the state before dissolution, and the dissolved company shall have the identity of the dissolved company and the right ability to be reduced within the scope of the purpose of liquidation due to dissolution (Article 245 of the Commercial Act), which has been reduced within the scope of the purpose of liquidation (Article 245 of the Commercial Act), shall be restored to the full legal capacity of the dissolved company. In addition, the liquidator shall lose his/her authority and, in principle, the execution agency

As seen earlier, the Plaintiff passed a resolution of the above general meeting of partners and appointed a liquidator. According to the above legal principles, even if a liquidator was appointed after dissolution of the company, the liquidator would lose his/her authority if the company continues to exist, and the appointment of the liquidator by the resolution of the company's general meeting of members would be contradictory in itself. Therefore, the validity of the resolution of the company's general meeting of members would be contradictory. Therefore, the above resolution of the general meeting of members would eventually be to continue dissolution of the company. As can be seen in determining the appointment of the liquidator to continue dissolution of the company as an agenda item, the appointment of the liquidator is not for the execution of liquidation affairs after dissolution of the company, but for the execution of affairs concerning the continuation of the company. However, the appointment of the liquidator is merely for the completion of the existing affairs, collection of claims, repayment of debts, disposal of property realization, distribution of residual property (Article 254 of the Commercial Act). Therefore, the portion of the resolution of the above company's general meeting of members would not be null and void even if the appointment of the liquidator is legitimate.

Therefore, it may be deemed that Nonparty 1 was appointed as the representative of the Plaintiff in the event of denying the validity of appointment of the liquidator against Nonparty 1 as such. However, in the case of a limited partnership company, unless otherwise stipulated in the articles of incorporation, each general partner has the authority and duty to execute the business of the company (Article 273 of the Commercial Act). Since a limited partner does not perform the business of the company or act as a representative of the company (Article 278 of the Commercial Act), so long as the continuation of the company is recognized, Nonparty

4. Conclusion

Thus, the plaintiff's appeal is unlawful since it is filed by a person without the power of representation. Thus, the plaintiff's appeal is dismissed, and it is decided as per Disposition by applying Articles 108 and 107 (2) of the Civil Procedure Act to the burden of litigation costs.

Judges Choi Su-soo (Presiding Judge) Kim Ho-ho, and Seo-young