Creditor (Attorney Park Jong-woo et al., Counsel for the plaintiff-appellant)

Category & Construction Co., Ltd

District Court Order 2019Kahap5131 dated June 4, 2019

1. Revocation of a decision of the first instance;

2. The motion of this case shall be dismissed.

3. The total costs of the lawsuit shall be borne by the obligee.

The decision of the first instance shall be revoked. The debtor shall not execute the duties as a liquidator of a cooperative until the completion of liquidation affairs of the cooperative composed of creditors and debtors. During the suspension period of the above duties, a person designated by the court (certified tax accountant or attorney) shall be appointed as a liquidator of the said

1. Basic facts

According to the purport of the whole records and examinations, the following facts are substantiated.

A. The debtor purchased approximately 429.1 square meters (number 1 omitted) and approximately 514.4 square meters (number 2 omitted) in Do Government-si in order to run an urban residential housing business (hereinafter “instant business”), and completed the registration of ownership transfer under the name of the debtor on August 29, 2012, and received a construction permit on November 22, 2012.

B. Since the completion of the registration of seizure and provisional seizure as to each of the above lands and the commencement decision of auction, etc., the debtor's economic situation aggravations, and the debtor agreed to operate the business of this case with the creditor on May 15, 2014 to attract investment money and to operate the business of this case (hereinafter "the agreement of this case"). The creditor entered into a sales contract with the debtor on the same day, and completed the registration of ownership transfer in the creditor's name as to each of the above lands on June 11, 2014.

C. From November 4, 2014 to November 20, 2014, during the instant business process, the debtor notified the creditor that the instant business partnership agreement and the instant sales contract will be terminated on the ground that only a part of the investment amount agreed upon by the creditor is paid to the creditor three times, and the joint business is impossible. Accordingly, the creditor responded to the purport that on November 18, 2014, the due date for the payment of the investment amount was not fixed, and that there was a separate claim for damages against the loss arising from the unilateral notification of termination.

On the other hand, the building permit was revoked on December 23, 2014 on the ground that it did not commence the construction within two years from the date of the building permit.

D. On March 18, 2015, the debtor filed a claim against the creditor for the cancellation of the registration of ownership transfer of the above land as a restitution or distribution of residual property following the dissolution of the partnership (Seoul High Court 2016Na208909). The above court rendered a judgment dismissing the debtor's claim against the creditor on August 25, 2016 on the ground that the liquidation procedure has not been completed. Although the debtor appealed, the judgment dismissing the appeal was rendered on September 14, 2018 (Seoul High Court 2016Na208909). The above judgment became final and conclusive around that time.

E. On July 25, 2016, the creditor filed a claim against the debtor for confirmation of non-existence of the obligation to pay the settlement money for operating a business under the instant partnership agreement with the Jung-gu District Court 2016Kahap54411 (hereinafter “Seoul High Court”), and the said court rendered a judgment dismissing the creditor’s claim against the debtor on November 29, 2017 on the ground that the creditor did not undergo the liquidation procedure on November 29, 2017. The creditor appealed, but (Seoul High Court 2018Na200235) but was dismissed on September 14, 2018. The said judgment became final and conclusive thereafter.

F. On December 31, 2018, a creditor filed a claim against a debtor on December 31, 2018 to dismiss the debtor from the liquidator under the instant partnership agreement and to appoint a temporary liquidator. However, the said court rendered a dismissal decision on March 15, 2019. Although the creditor filed a complaint (Seoul High Court 2019Ra20380), the creditor was dismissed on July 25, 2019, and the creditor re-appealed (Supreme Court 2019Ma6200) but was dismissed on November 15, 2019.

2. Summary of the creditor's petition;

As the instant association was de facto dissolved, the creditor and the debtor were in the position of joint liquidator, and the liquidation procedures do not proceed because the debtor and the creditor did not cooperate in the liquidation procedures without any agreement on the liquidation between the creditor and the debtor. In such a case, in order to implement the liquidation procedures of the partnership, it is the sole method to dismiss the liquidator who does not cooperate in the liquidation procedures and to apply for the appointment of a person to act on behalf of the debtor. Therefore, inasmuch as the right to claim for distribution of residual property following the dissolution of the instant association or the right to claim for dismissal of the debtor who does not cooperate in the liquidation procedures, the

3. Determination on the legality of the application

A. As to the suspension of the execution of duties and the provisional disposition of the right to claim distribution of residual property following the dissolution of the association

1) The right to claim distribution of residual property following the dissolution of an association is the right to seek payment of money or performance of a specific article. However, the right to claim payment of monetary claims or performance of a specific article is exceptionally a preserved right to determine temporary position only in cases where it is necessary to prevent current risks and losses. In such cases, a satisfactory provisional disposition seeking provisional performance according to the purpose of the claim is allowed, such as payment of money or delivery of a specific article, and it cannot be deemed that provisional disposition is allowed to determine temporary status premised on the right not vested in the preserved right. Since the right to claim distribution of residual property following the dissolution of an association includes a right to dispute the status of a liquidator, such as seeking removal of a liquidator, it cannot be deemed that the right to claim distribution of residual property following the dissolution of the association is included in the right to dispute the status of a liquidator. Accordingly, suspension

[In case where a partnership is dissolved, in principle, a partner may not claim the distribution of the residual property without the completion of the liquidation procedure. However, when the partnership does not dispose of the remaining property as the remaining business of the partnership and only the distribution of the remaining property remains, a partner may exercise his right to claim the distribution of the remaining property without the need to separate liquidation procedure (see, e.g., Supreme Court Decisions 94Da13749, Feb. 24, 1995; 9Da35713, Apr. 21, 200). In such a case, one partner must immediately seek the payment of money or a specific property within the scope of his/her ratio of distribution of the remaining property. Thus, it is sufficient that a partner has requested the repayment of the remaining property immediately. Thus, the liquidator's right to request the suspension of the execution of his/her duties and the provisional disposition to appoint

2) Therefore, an application for provisional disposition of suspension of the execution of duties by a creditor, whose right to claim distribution of residual assets following the dissolution of the instant association, is unlawful.

B. Regarding the suspension of execution of duties and the provisional disposition against the debtor's right to claim dismissal of the debtor as preserved right

1) A lawsuit for the formation of a legal relationship shall be permitted only where there is a express provision in the law, and a lawsuit for a claim for dismissal against the representative, etc. of an organization constitutes a lawsuit for the formation of a legal relationship. Since there is no legal basis that can bring such lawsuit, a disposition for the suspension of performance of duties that covers a claim for such dismissal as a preserved right shall not be allowed (see Supreme Court Order 97Ma269, Oct. 27, 1997; Supreme Court Decision 2000Da45020, Jan. 16, 2001, etc.).

However, Article 723 of the Civil Code provides that in relation to the dismissal of a liquidator who is a partner, Article 708 of the Civil Code provides that the liquidator shall not be dismissed unless he/she is the same as that of other partners by applying mutatis mutandis Article 708 of the Civil Code, and does not apply mutatis mutandis the provision concerning a lawsuit for dismissal of a liquidator, or the provision recognizing a lawsuit for dismissal of a liquidator of an incorporated association or a stock company (Article 84 of the Civil Code

In the case of two partnerships under the Civil Act, in view of the fact that one liquidator does not cooperate in the liquidation procedures, the remaining liquidator is the only method to request the court to dismiss the liquidator and to appoint the acting liquidator, that the Civil Act applies mutatis mutandis to the liquidator of the partnership, and that the provisions on the liquidation of the partnership under the Civil Act are voluntary provisions, the suspension of execution of duties, which is the principal subject matter of the lawsuit to dismiss the liquidator, shall be allowed. However, in Article 724(1) of the Civil Act, the Civil Act does not apply mutatis mutandis Article 84 of the Civil Act, which is a provision on the dismissal of the liquidator by the court, in addition to Article 87 of the Civil Act, which is a provision on the liquidator of the partnership, as to the duties and authority of the liquidator, unless there is an explicit legal basis, it cannot be deemed that the suspension of duties, which is based on the premise, is permitted to be applied mutatis mutandis to the case of the liquidation of the partnership (see Supreme Court Decision 92Da2620, Mar. 23, 1993).

2) Meanwhile, in the event that two persons agree to jointly operate a business by mutual investment, the provisions on the liquidation of a stock company apply. In the case of the instant partnership agreement, the creditor asserts to the effect that, inasmuch as the creditor invests in cash and the debtor jointly runs the business by investing in kind (land) but the debtor is to run the instant business in the name of the debtor who is a stock company, the claim for dismissal against the liquidator is possible in accordance with the legal principles of the stock company.

According to the purport of the entire records and examination, the creditor in the instant partnership agreement has the authority of a prop, while the debtor has the authority of an executor and a contractor with the authority of a corporation, and the fact that the company in this case was agreed to proceed with the business in this case is proved. However, in this case, the debtor with the external executor and the status of a corporation is a stock company, and it is difficult to view that the parties to the instant partnership agreement have to comply with the legal principles of the company in both external and internal relations, such as the case where the parties to the agreement establish a stock company and conduct joint business in the name of the company

3) Therefore, since a lawsuit seeking dismissal against a debtor, who is a joint liquidator of the instant cooperative, cannot be brought, the application for provisional disposition suspending the performance of duties, which serves as the preserved right, is unlawful (see Supreme Court Order 97Ma2269 delivered on October 27, 1997).

4. Conclusion

If so, the obligee’s motion of this case is unlawful, and thus, it shall be dismissed. The first instance court’s decision is unfair with different conclusions, and thus it is so revoked and it is so decided as per Disposition by the assent of all participating Justices.

Judges' engine fever (Presiding Judge)