1. Whether it is possible to revoke an investment declaration on the establishment of a company on the ground that such investment was made by fraud or duress;

2. Whether or not to cancel the contract for the same business;

1. If there is any ground for cancellation of the establishment of a company, the act of establishment may be asserted only by the method of action for cancellation and shall not be asserted by the method of cancellation, etc. under the Civil Act;

2. Since a partnership agreement is a kind of partnership agreement, it is only possible to terminate the legal relationship by means of dissolution, withdrawal, expulsion, etc., and it cannot be cancelled by the general principle of termination of contract.

Articles 184, 328, and 552 of the Commercial Act; Articles 716, 717, 718, and 720 of the Civil Act

쇠도요 Limited Partnership Company

Defendant 1 and two others

Daejeon District Court of the first instance (70A241)

In the judgment of the court below, the part accepting the plaintiff's claim for cancellation of registration against the defendants is revoked, and the plaintiff's claim is dismissed.

Defendant 1’s remaining appeal is dismissed.

Of the litigation costs, those arising between the plaintiff, defendant 2 and defendant 3 through the first and second trials shall be borne by the plaintiff, and those arising between the plaintiff and defendant 1 shall be divided, and one of them shall be borne by the plaintiff, and the remainder shall be borne by the same defendant.

The plaintiff sought the following judgment.

(1) On February 13, 1970, Daejeon District Court Decision 4392 dated February 13, 1970, the Defendants implemented the procedure for registration of cancellation of ownership transfer registration in the name of the Defendants for trade reasons on the 5th day of the same month.

(2) On November 1, 1969, Defendant 1 performed the procedure for the registration of ownership transfer on the said real estate to the Plaintiff.

(3) Litigation costs are assessed against the Defendants.

Defendant 2 and 3 sought the same judgment as the Disposition No. 1, and Defendant 1 revoked the original judgment and sought a judgment that dismissed the Plaintiff’s claim.

1. First, the Plaintiff’s claim for ownership transfer registration against Defendant 1 is deemed to have been filed.

(A) Defendant 1 decided to incorporate Nonparty 1, 2, 3, 4, and 5 with the Plaintiff Company, and prepared the articles of incorporation on November 1, 1969, and Defendant 1 decided to contribute in kind to 159, 1763, Chungcheongnam-gun, Chungcheongnam-gun, Chungcheongnam-gun, the instant site, in the articles of incorporation. Since the registration of incorporation was completed on the 14th of the same month, the fact that the Plaintiff Company was established is not a dispute between the parties, the said Defendant is obligated to implement the procedures for the registration of ownership transfer of the said site in accordance with the above articles of incorporation (as determined in the grounds of this decision 2, the above land was transferred from Defendant 1 to the Defendants, and there is a problem as to whether it is possible for Defendant 1 to perform the above obligation to transfer ownership registration of the said site, but Defendant 1 did not submit any defense against this point).

(B) Defendant 1 asserts that the above declaration of intent made by the defendant to invest in the above site was revoked by the fraud or coercion of other members who participated in the establishment of the company, and thus the plaintiff's claim cannot be accepted. However, if each member participating in the establishment of a limited partnership is able to revoke it without permission on the ground that there are grounds for revocation of the establishment of the company, such revocation shall be deemed null and void from the beginning, and the person was not a member. As a result, in the personal company of the plaintiff company based on personal credit, the existence of the company shall not be denied because the existence of the company was lost in the personal company of the plaintiff company, thereby affecting the company's establishment itself, thereby incurring losses to the bona fide company holder and causing unstable in business relations. Accordingly, the person who caused the revocation of the establishment of the company can only claim the revocation of establishment by means of lawsuit and deny his/her obligation based on the revocation of establishment, and thus, the defendant's assertion that the revocation of the establishment of the company should not be accepted.

(A) According to the statement of evidence Nos. 5 ( Original Copy of Judgment), Defendant 1 is recognized as having filed a lawsuit seeking nullification of the establishment of the Plaintiff Company on the same ground as above and lost the Plaintiff Company)

(C) In addition, Defendant 1 asserts that all members of the Plaintiff Company exempted the Plaintiff Company from the Defendant’s investment obligation on December 8, 1969, while Defendant 1 asserts that the Plaintiff Company exempted the Plaintiff Company from the Defendant’s investment obligation. However, the above assertion is groundless on the grounds that it is difficult to acknowledge the above fact in the testimony of Non-Party 6 and Non-Party 7 on the sole basis of the written evidence Nos. 2-1, 2, 3-1, 3-3 (each notification) and the testimony of Non-Party 6 and Non-Party 7.

2. Next, we examine the Plaintiff’s claim for cancellation of ownership transfer registration against the Defendants.

(A) The fact that approximately 159,763 (159) was registered as Defendant 1’s sole ownership in the North Korea, Chungcheongnam-gun, Chungcheongnam-gun, Chungcheongnam-gun, Chungcheongnam-do, and that the registration of ownership transfer was made on February 13, 1970 as prescribed by the Daejeon District Court Decision No. 4392 on February 13, 1970, and the Defendants were registered as joint ownership on May 13, 197, is no dispute between the parties.

(B) The plaintiff's representative asserts that the above defendants' joint ownership registration was a contract with three defendants to operate the flag and factory as a partnership business, and if the contract is concluded, it was a means to secure the obligations to be borne by the other defendants (the defendant 2 and 3) under the contract for the partnership business. Since the above joint ownership registration was not established, the plaintiff's claim for cancellation of the above joint ownership registration, which is invalid in subrogation of the defendant 1, was asserted in order to preserve the above right to claim for cancellation of the above joint ownership registration, since the defendants did not clearly dispute the part of the argument about the plaintiff's claim for cancellation of the joint ownership registration, the plaintiff's claim for cancellation of the above joint ownership registration should be confirmed only on the ground that the plaintiff's claim for cancellation of the joint ownership registration was made as a means to secure the obligations to be borne by the other defendants (the defendant 2 and 3). Thus, the plaintiff's assertion that the plaintiff's claim for cancellation of the joint ownership registration was made with the defendant 1 and the defendant 2, 300.

(C) In addition, the Plaintiff’s legal representative asserted that the registration of the combination was made on the ground of a false representation in which the Defendants conspired. However, there is no evidence to acknowledge such fact, and therefore, it is also groundless.

(D) In other words, the Plaintiff’s legal representative concluded a Dong factory business agreement with the Plaintiff on February 1, 1970, and Defendant 1 agreed that Defendant 2 and 3 shall invest in the factory facilities and technology on the instant site, and that Defendant 2 and 3 shall make a contribution amounting to KRW 5,00,000. However, Defendant 2 and Defendant 3 would make an investment without any intent to make such a contribution, and Defendant 1 would make a use of the forged bill’s face value of KRW 3,700,000 in cash with Nonparty 8 in order to have Defendant 1 believe this, the Plaintiff asserted that Defendant 1 would have cancelled the registration of the transfer from the Defendant’s name and thus, Defendant 1 would have cancelled the registration under the above Defendant’s name.

However, on February 1, 1970, the defendants entered into a partnership agreement with the non-party 1; the defendant 1 agreed to pay 5,000,000 won to the non-party 2; and the non-party 2 agreed to pay 80,000 won to the non-party 1's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company's company'.

이 사건 대지에 관한 합유등기의 말소소송을 한다는등 말썽이 나고 공장의 운영권을 둘러싼 피고들간의 분쟁이 일어나게 되자 그에 따라서 피고 2와 피고 3의 출자이무이행여부에 대하여도 피고들사이에 다툼이 벌어지게 된 사실이 인정되는바, 그렇다면 이사건 대지에 대한 피고들 명의의 합유등기를 하기로 한 합의는 이미 동업계약당시에 당사자간에 이루어졌던 것이며, 그후 합유등기당시에 위조약속어음을 이용하여 작성된 출자예정금 명목의 은행예금통장이 피고 1측에게 제시된 것은 단지 그 등기를 촉진시킨 주변적 사정에 불과한 것이라 할 것이고, 위 동업계약상의 출자의무를 피고 2, 3이 이행할 의사가 없었다고도 인정되지 아니하므로, 위 합유등기가 사기에 의한 피고 1의 의사표시로 인하여 된 것임을 전제로 한 원고의 위 주장역시 받아들일 수 없다.

(E) Finally, after the conclusion of the above agreement, Defendant 1 performed all the obligations under the contract, but Defendant 2 and Defendant 3 rescinded the above agreement on April 16, 1970 because the above agreement was not fulfilled properly, and thus, the reason for the registration of the combination of rights in the name of the Defendants as to the land in this case is also invalidated, the registration shall not be dismissed.

It is not only to form a continuous legal relationship but also to form an organization, so liquidation shall be conducted by means of dissolution, withdrawal, expulsion, etc. of the partnership, and it shall not be cancelled the partnership agreement in accordance with the general principle of contract rescission unless there are any special circumstances. Thus, the above assertion that Defendant 1 cancelled the partnership agreement, which is alleged to be a kind of partnership agreement, is interpreted as not fulfilling other union members' investment obligations, and the above defendant is not able to cancel the contract after the commencement of the partnership agreement, as already recognized in the above subparagraph (d). Thus, it is not possible to cancel the contract after the commencement of the partnership agreement (the defendant 1 must solve the problem of the partnership registration of this case after undergoing the liquidation procedure through the request for dissolution of the partnership or the withdrawal from the partnership). Thus, the above argument is without merit.

3. For the above reasons, the plaintiff's claim for the registration of transfer against defendant 1 among the plaintiff's principal claim is justified and the plaintiff's claim for the cancellation of the registration in the name of the defendants is dismissed unfairly. Thus, the plaintiff's claim for the cancellation of the above registration in the original judgment is dismissed, and the plaintiff's claim against the above part in the original judgment is dismissed, and the remaining appeal by defendant 1 is without merit, and it is so decided as per Disposition by applying Articles 89, 92, 93, and 96 of the Civil Procedure Act to the cost of lawsuit.

Judge Jeon Soo-chul (Presiding Judge)