Where a limited partnership company is dissolved due to the expiration of the period of existence and only a part of its members agree to the continuation of the company, whether the provisions of the articles of incorporation may be modified or abolished with the consent of its members (affirmative), and where some members agree to the continuation of the company, whether the continuation of the company occurs even if the consent of the remaining members is unclear

In cases where a limited partnership company is dissolved upon the expiration of the period of existence stipulated in the articles of incorporation (Articles 269 and 227 subparag. 1 of the Commercial Act), and the company may continue to exist with the consent of all or some of its members (Articles 269 and 229(1) of the Commercial Act). In such cases, the provisions of the articles of incorporation relating to the period of existence need to be amended or abolished, and barring any special circumstance, the amendment of the articles of incorporation requires the consent of all the members (Articles 269 and 204 of the Commercial Act). However, if a limited partnership company is dissolved upon the expiration of the period of existence and only a part of its members have consented to the continuation of the company, the provisions of the articles of incorporation may be amended or repealed with the consent of all the members. In addition, if a certain member consented to the continuation of the company, even if it is unclear whether the remaining members consent to the continuation of the company.

Articles 204, 227 subparag. 1, 229(1), and 269 of the Commercial Act

Gwangju Trade Limited Partnership (Attorney Choi Byung-soo et al., Counsel for the defendant-appellant)

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

Gwangju High Court Decision 2014Na4476 decided October 16, 2015

The appeal is dismissed. The costs of appeal are assessed against the Nonparty (date of birth omitted) and Gwangju North-gu ( Address omitted).

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate brief).

1. Where a limited partnership company is dissolved upon the expiration of the period of existence as stipulated by the articles of incorporation (Articles 269 and 227 subparag. 1 of the Commercial Act), and it may continue to exist with the consent of all or some of its members (Articles 269 and 229(1) of the Commercial Act). In this case, there is a need to modify or abolish the provisions of the articles of incorporation relating to the period of existence. Barring any special circumstance, an amendment to the articles of incorporation requires the consent of all the members (Articles 269 and 204 of the Commercial Act). However, if a limited partnership company has consented to the continuation of a company by only a part of its members after it is dissolved due to the expiration of the period of existence, the provisions of the articles of incorporation may be amended or repealed with the consent of all the members. In addition, since it is not possible to continue to exist where all the members consented to the continuation of a company, the effect of continuation of the company even if it is unclear

2. The lower court determined that the Nonparty cannot be a legitimate representative of the Plaintiff, on the ground that the Plaintiff, a limited partnership company, was dissolved at the expiration of the term of existence, but some of its employees were decided to continue to hold a general meeting of partners and abolish the articles of incorporation provisions governing the company’s existence period, and the Plaintiff continues to hold a company as of the date of the above general meeting of partners with the consent of some of its employees, and on the same day, the above resolution was made to continue to exist, and the resolution of appointment of the liquidator of the Nonparty, which was taken place,

Examining the record in light of the aforementioned legal principles, the lower court did not err in its judgment by misapprehending the legal doctrine on the continuance of a limited partnership company, contrary to what is alleged in the grounds of appeal.

3. Therefore, the appeal is dismissed and the costs of appeal are assessed against the above non-party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)