Plaintiff (Law Firm Western, Attorneys Lee Jong-hoon et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Han-il et al., Counsel for the defendant-appellant)

July 10, 2013

Daejeon District Court Decision 201Gahap14170 Decided November 1, 2012

1. Revocation of a judgment of the first instance;

2. The instant lawsuit shall be dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant's limited partnership company is declared to lose the power to perform its duties against the daily traffic of the defendant.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Circumstances leading to the instant case;

The reasoning for this part of the court's explanation is the same as that for the corresponding part of the judgment of the court of first instance, and thus, it is accepted by the main text of Article 420 of the Civil Procedure Act.

2. Determination on this safety defense

A. The parties' assertion

The plaintiff continued to be appointed from September 2008 as a general partner and a representative member with unlimited transport, and even if the plaintiff requested to peruse and copy documents related to the accounting of the daily transport, the defendant did not comply with this request, and further disbursed money in the name of a large amount of non-performance penalty with the Japanese transport, while operating the Japanese transport, he arbitrarily disbursed money for himself and children, his own work execution expenses, attorney fees for the private and criminal cases, arbitrarily disbursed money in the name of his private and criminal cases, withdraws the Japanese transport corporation card for personal purposes, and embezzled large amount of money by using the Japanese transport corporation card for the personal purposes. After the plaintiff was appointed as a general partner with unlimited transport, the plaintiff continued to conduct a series of actions to conduct the Japanese transport for the sole purpose after he was appointed as a general partner with unlimited transport, and therefore, the defendant asserted that the plaintiff's right to conduct the business should be lost as the plaintiff's non-party's right to do so, and therefore, the plaintiff's right to do so should be forfeited.

(b) Fact of recognition;

1) Upon Nonparty 2’s application, on March 21, 201, the Daejeon District Court rendered a provisional attachment order of KRW 125 million against the Plaintiff and Nonparty 1’s claim for the loan of KRW 70 million against Nonparty 2 and Nonparty 1 as the preserved right (Seoul District Court Decision 201Kadan1314, the provisional attachment of investment certificates). The above decision reached the date of March 24, 201, and reached the date of the appeal on October 14, 2011; the Plaintiff, Nonparty 1, 4, and 5 were jointly and severally dismissed on October 14, 201, and the appellate court rendered a final judgment of KRW 70 million against Nonparty 2, the provisional attachment order of KRW 125 million against the Plaintiff and Nonparty 1 (Seoul District Court Decision 201Na161271, the provisional attachment order of KRW 2015, the provisional attachment order of KRW 2015,215,217.

2) On March 13, 2012, when the Plaintiff and Nonparty 1 did not repay the instant debt, Nonparty 2 notified the Plaintiff and Nonparty 1 to repay the instant debt within six months pursuant to Articles 269 and 224 of the Commercial Act, and did not perform it, Nonparty 2 notified the Plaintiff and Nonparty 1 to forced the Plaintiff to retire and to collect the instant claim as a refund for the equity interest in the instant portion of the Japanese transport, and on June 4, 2012, notified the Plaintiff and Nonparty 1 to the effect as above.

3) On November 15, 2012, Nonparty 1 deposited full amount of KRW 100,744,382 with the Daejeon District Court (hereinafter “instant deposit”). The Japanese Transport Co., Ltd. (the representative Defendant) collected the instant deposit by exercising the right of collection on December 7, 2012, under the judgment of the Daejeon District Court 2010Kahap1092, the provisional execution declaration of Nonparty 1’s damage claim of KRW 282,726,592, which was issued by Nonparty 1, as the preserved right, on December 4, 2012, upon Nonparty 1’s right to claim the collection of the instant deposit, the claim was seized and collected (the Daejeon District Court 2012 Ta16049, hereinafter “instant collection order, etc.”), and the right of collection on December 7, 2012.

4) On January 2, 2013, Nonparty 2 filed a claim for refund of the respondent and Nonparty 1’s share on the ground that Nonparty 2 and Nonparty 1 were retired on December 31, 2012 from the Japan Transportation.

[Ground of recognition] The evidence Nos. 28 through 34, each entry of No. 38, and the purport of the whole pleadings

C. Determination

1) According to the above facts, the Plaintiff retired on December 31, 2012, which was the end of the business year of the daily transport pursuant to Article 224(1) of the Commercial Act.

2) In accordance with Article 224(2) of the Commercial Act, the Plaintiff asserted that, as Nonparty 1 deposited the instant case on November 15, 2012 and repaid the principal and interest, including the Plaintiff’s debt amount, Nonparty 2’s advance notice of withdrawal becomes invalid at that time, and later, the effect of advance notice of withdrawal cannot be restored due to collection by collection order, etc. of the instant collection order.

Article 489(1) of the Civil Act provides that the obligee shall approve the deposit, receive the deposit against the depository, or recover the deposited goods until the judgment of validity of the deposit becomes final and conclusive, and in this case, the obligee shall be deemed not to have deposited the deposited goods. In this case, the validity of the extinguishment of the claim shall be deemed to be retroactively null and void (see Supreme Court Decision 67Da2120, Nov. 28, 1967). As such, the recovery of the deposited goods where the validity of the extinguishment of the claim is retroactively extinguished shall include not only the case made by the depositor, but also the case in which the obligee seizes the right to claim the recovery of the deposited goods in the name of a separate claim against the depository by a third party and collects the deposited goods by its execution (see Supreme Court Decision 80Da777, Feb. 10, 1981).

On December 7, 2012, according to the collection order, etc. of this case, the fact that the transportation was recovered from the deposit of this case on December 7, 2012 by the collection order, etc. of this case is recognized as above. Thus, the validity of the payment was retroactively extinguished since the deposit of Nonparty 1 becomes retroactively null and void. Therefore, the plaintiff's assertion on this part is without merit.

3) The plaintiff and the defendant again asserted that since the defendant received the collection order, etc. of this case solely because they were joint representatives of daily transportation, it is not effective to recover the deposit of this case and the validity of the deposit of this case is valid.

Where several partners agree to jointly represent the company when a limited partnership company is incorporated, such provisions shall be registered in the commercial register within a fixed period (Article 269 and subparagraph 5 of Article 180 of the Commercial Act). Unless they are registered, such provisions shall not oppose against a bona fide third party (Article 37(1) of the Commercial Act).

The evidence Nos. 1 and 5 provides that the representative member cannot represent the company in light of the purport of the entire pleadings, and the purpose of the joint representative of the company is not registered in the commercial register. In the collection of the deposit money of this case, the deposit official can recognize the fact that the deposit money of this case is delivered based on the collection order, etc. of this case, confirming that the public official has the power of representation through the commercial register, even if there is a joint representative provision in the articles of incorporation, there is no evidence that the collection order, etc. of this case based on the duties of the registered public official, a bona fide third person who trusted the commercial register, is illegal or invalid. Accordingly, the plaintiff's assertion on this part is without merit.

4) The plaintiff filed the lawsuit in this case as a non-party employee pursuant to Articles 269 and 205(1) of the Commercial Act. However, since it is apparent that the plaintiff retired as of December 31, 2012 during the lawsuit in this case and lost the status of a partner, the lawsuit in this case must be dismissed because it does not meet the requirements for the lawsuit (or, however, the adjudication system for the forfeiture of authority of a limited partnership company's executive partner under Article 205 of the Commercial Act is aimed at removing the reasons for the operation of the company, and it does not aim to go back to the dissolution of the company, and therefore, the report for the forfeiture of authority to the executive partner in a limited partnership company is returned to the state where there is no managing member and representative member of the company, so it cannot be operated because it violates the purpose of the system for the forfeiture of authority (see Supreme Court Decision 75Da1341, Apr. 26, 197). Thus, the plaintiff's claim in this case cannot be accepted as the plaintiff's claim in this situation.

3. Conclusion

Therefore, the lawsuit of this case shall be dismissed in an unlawful manner, and the judgment of the court of first instance is unfair with the conclusion different, and it is so decided as per Disposition by cancelling the judgment of the court of first instance and dismissing the lawsuit of this case.

Judges Shin Jae-op (Presiding Judge)