Assignment Order on Claim for Refund of Share of Member with Limited Liability prior to retirement is appropriate;

Since the non-party Kim Jong-hwan performed the obligation to contribute KRW 3,00,000 as a partner with limited liability of the defendant company, it is identical to the above recognition, it is deemed that the nature of the right to the share refund claim was granted at that time. Although it is not a claim that was actually confirmed before the member retires, it cannot be subject to the attachment and assignment order even if it is not a claim that was actually confirmed before the member retires.

Articles 563 and 564 of the Civil Procedure Act

Stoppy et al. and two others

Passenger in a limited partnership company

Government Branch of Seoul District Court (76Gahap89) in the first instance trial (76Gahap89)

1. Revocation of the original judgment;

2. The defendant shall pay to the plaintiff Gambak-do the amount of 2,131,316 won, 22,581 won per annum from June 2, 1976 to the full payment day. The defendant shall pay to the plaintiff Gambak-do the amount of 5% per annum.

3. The costs of the lawsuit shall be borne by the defendant in both the first and second instances.

4. The above paragraph 2 can be provisionally executed.

same as the order(the initial date of the claim for delay which comes in the trial shall be reduced).

In light of the purport of pleadings in the above evidence Nos. 1 (Decision), 2 (Delivery Certificate), 4 (Judgment) and 5-2 (Receipt Certificate) and 6 (No. 1) presumed to have been sent and received, as a whole, as to the above defendant 2's above 3-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 6-party 1's claim against the defendant 3-party 1's non-party 3-party 6-party 1's claim against the above 3-party 1's non-party 6-party 1's non-party 6-party 1's claim against the above 3-party 6-party 1's non-party 1's non-party 6-party 1's claim against the above defendant company's non-party 6-party 1's claim against the above 1's claim against the above 6-party 9-party 6-party 1's claim against the above.

Therefore, according to the above facts of recognition, the plaintiffs' claim for withdrawal of the above Kim Jong-dong, which is a partner with limited liability to the defendant company, was effective on December 31, 197, which was the end of the pertinent business year after six months from the time of the request for withdrawal. In this case, since the plaintiffs' seizure and the claims received in whole were determined specifically, the defendant company is obliged to pay the above whole amount and the damages for delay from the day of delivery of the assignment order to the date of full payment.

The defendant-appellant is entitled to transfer the shares of a limited partnership company's limited partner only when the investor's voluntary transfer is impossible and the consent of all general partners is required. Since the seizure and assignment order of the claim for refund of shares did not have the consent of the general partners, the above seizure and assignment order of the claim cannot be effective. However, in issuing the seizure and assignment order of the claim for refund of shares, it does not necessarily require the consent of the general partners as stipulated in Article 276 of the Commercial Act. Thus, the above dispute cannot be accepted.

Then, the defendant's legal representative held that the right to claim a share refund against the defendant company of the non-party Kim Jong-hwan was specifically created only when he withdraws from the defendant company. Since the assignment order was issued before the withdrawal of the defendant company came into force, and the specific amount of the share to be refunded was not confirmed, and thus, the assignment order of the non-party Kim Jong-hwan was null and void. However, since the non-party Kim Jong-hwan fulfilled its obligation to invest the amount of KRW 3,00,000 as a limited partner of the defendant company, the right to claim a share refund was granted at that time, and even if the claim is not actually confirmed before the withdrawal of the member, it cannot be subject to seizure and assignment order (see Supreme Court Decisions 74Da245 delivered on July 23, 1974; 200Da41840 delivered on July 22, 1975; 200Da741840 delivered on July 22, 1975).

Then, the defendant Kim Jong-hwan's defendant company's share does not amount to KRW 300,000,000. However, according to the above Gap's evidence 3, the defendant Kim Jong-sung's claim that the limit and type of the limited partnership company's liability arises. According to the above Gap's evidence 3, the non-party Kim Jong-hwan's seizure and assignment order was served on the defendant company and its validity came into effect on June 1, 1976, and it can be known that the amount of its investment was changed to KRW 300,000 and registered at KRW 300,000 after the seizure and assignment order came into force on the 8th of the following month. Thus, the above non-party's liability limit registered after the seizure and assignment order came into effect cannot be asserted against the plaintiff. Thus, the above claim of this case is without merit.

Thus, the defendant is obligated to pay to the plaintiffs' Gambak-do the above all principal case to the plaintiffs' 2,131,316 won, Dong Gambak-do, 22,581 won each, and damages for delay from June 2, 1976 to the date following the delivery date of the assignment order of this case. Thus, the plaintiff's claim for this lawsuit is justified and accepted. Since the original judgment has dismissed all the plaintiffs' claims, it is unfair, and the plaintiffs' appeal against this is decided to revoke the original judgment with reasonable grounds, and the costs of lawsuit shall be borne by the defendant who has lost both the first and second trials, and provisional execution shall be permitted. It is so decided as per Disposition by the court below.

Judges Lee Byung-su (Presiding Judge)