[1] Whether the right to withdraw from partnership under the Civil Act can be the object of creditor's subrogation right (affirmative)

[2] Whether a seizure or other compulsory execution may be conducted for an individual property that constitutes a partnership's property (negative)

Articles 271, 273, 704, 714, 716, and 719 of the Civil Act; Article 251 of the Civil Execution Act

Korea Credit Guarantee Fund (Law Firm Jin Law, Attorneys Gi-soo et al., Counsel for the defendant-appellant)

Suwon District Court Order 2005Ra287 dated October 24, 2005

The reappeal is dismissed.

The grounds of reappeal are examined.

1. As to the second ground for reappeal

In principle, a member of a cooperative may withdraw from the cooperative at any time, except where the term of the cooperative is determined (see Article 716 of the Civil Act). If a member withdraws from the cooperative, he/she shall calculate his/her share in accordance with the property condition of the cooperative at the time and make a claim for the refund of share (see Article 719 of the Civil Act). The right to withdraw from the cooperative shall be a kind of property right constituting his/her general property as a right to terminate the partnership agreement in its nature and shall not be deemed a right of subrogation of the creditor. Therefore, the creditor who seizes a share of the debtor's property may act on behalf of the debtor, unless there are special reasons such as the existence of the partnership to which the debtor belongs or the withdrawal of the partnership from which the debtor is not permitted. In general, the mere reason why a member withdraws from the cooperative may interfere with the fulfillment of the purpose of the association shall not be a ground to refuse it.

Nevertheless, the court below erred by misapprehending the legal principles as to the subrogation right of a creditor, and the ground for reappeal pointing this out is justified, since it does not affect the result of rejecting the request for the collection order of this case, it does not constitute a ground for reversal of the order of the court below.

2. As to the first ground for reappeal

Article 714 of the Civil Code provides that "a seizure of a partner's share shall have effect on the right to future dividends and return of share of the partner" and permits the seizure of a partner's share of the partner's share of the partner, but the share of the partner here refers to the share of the partner's share of the partner's share of the partner's property as a whole, and otherwise, the seizure of a partner's share of the share of the partner's property cannot be subject

Examining the reasoning of the order of the court below in light of the records, the re-appellant filed an application for the attachment order with respect to the right to share held by the debtor as a partner with respect to the forest land of this case where the debtor is jointly owned by the garnishee. Accordingly, the court of execution issued the attachment order for the above right to share holding by the debtor on behalf of the debtor, the re-appellant declared that the debtor should withdraw from the partnership against the third debtor, i.e., the third debtor on behalf of the debtor, i., other co-inheritors, and requested the third debtor to collect the right to claim the share holding against the third debtor on the forest land of this case according to the declaration of intention to withdraw from partnership.

In light of the above facts in light of the legal principles as seen earlier, the above seizure order subject to the right to jointly maintain the forest land of this case, which is a specific property, is illegal since it is against the right without standing for execution, and thus its validity cannot be recognized. The re-appellant, on behalf of the debtor, expressed his/her intent of withdrawal from the above partnership relations. Accordingly, the claim subject to the collection order of this case, namely, the claim subject to the claim against the third debtor, which the debtor has against the third debtor, is not qualified for execution, and the right to claim the joint preservation portion concerning the forest land of this case, which is owned by the debtor against the third debtor, is not qualified for execution, and even if the claim is regarded as the claim for the right to claim the share of the association member who the debtor withdraws from the partnership with the third debtor, it is not a right subject to the original seizure,

Although the reasoning of the court below is somewhat inappropriate, it is just to reject the re-appellant's request for the collection order of this case, and it is not erroneous in the misapprehension of legal principles as to the validity of the seizure of the share in the partnership-ownership relationship as otherwise asserted in the grounds of reappeal.

3. Conclusion

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)