(영문) 제주지방법원 2020.8.13.선고 2020가합10585 판결

The defendant shall pay to the plaintiff 258,250,000 won with 12% interest per annum from the day following the day of service of a copy of complaint to the day of complete payment.

Reasons

1. Basic facts

A. Status of the parties

The defendant is an agricultural partnership governed by the Act on Fostering and Supporting Agricultural and Fisheries Enterprises (hereinafter referred to as the "Agricultural and Fisheries Enterprises Act") established in 1998*****. The plaintiff is a person who held 25% of the defendant's equity shares at the time of the establishment of the defendant partnership and participated in the establishment from November 26, 2005 to September 4, 201, the representative director of the defendant, from the time of establishment to November 19, 2001, from the time of establishment to June 11, 2002, from June 11, 2005 to June 11, 2005, and from June 13, 2005 to November 26, 2005.

The provisions pertaining to this case in the defendant's articles of incorporation are as follows.

Article 2 (Purpose) The purpose of this partnership is to increase productivity through collaborative agricultural management, to promote the rationalization of farming, water, livestock management, rationalization of agriculture, water, livestock environment, improvement of agricultural products, and joint shipment, processing, export, etc. of agricultural products.The rights of members of the partnership foundation (right) and (1) of this partnership foundation shall be as follows: 1. The rights of members of the partnership foundation (right) and (2) the rights of members of the partnership to receive compensation for the portion of their response to labor due to engaging in the joint operations of the partnership foundation; 3. The right to claim the refund of shares; 4. The right to vote of the officers of the partnership foundation and the right to be elected; 5. The right to participate in all meetings of the partnership foundation and to present their opinions; 7. The right to participate in the operation of the partnership foundation; 7. The right to supervise the performance of duties of partnership foundation and the right to vote.Article 12 (Duty)(1) The rights of members of the partnership foundation shall be as follows:

3. The duty to participate in the labor of the partnership corporation and comply with the rules of labor; 4. The duty to attend the general meeting; 5. The partner or associate member who wishes to withdraw from the partnership shall withdraw in writing 60 days before the beginning of the fiscal year concerned. The member or associate member shall not withdraw from the partnership corporation after giving notice of his intention to withdraw from the partnership corporation. (4) Notwithstanding the provisions of paragraph (1), if a member or associate member falls under any of the following subparagraphs, he may withdraw from the partnership corporation at the time when he faces operational difficulties of the partnership corporation without any inevitable reason. (1) The member or associate member may be expelled from the association by the resolution of the general meeting. (2) The member or associate member may, in the event that he fails to perform the duty of the provisions of Article 12; 3. The member or associate member obtains undue profits from the partnership corporation under the provisions of Article 18 (Legal Reserves) and the provisions of Article 10 (3) 10. The corporation shall accumulate the amount of the capital stock and the amount of profits from the association under the following provisions of Article 20.

(2) The legal reserve and the capital reserve can not be refunded in cash or in order to compensate for losses.(2) The shares of the partner in the property of the partnership juristic person referred to in Section 22 (Calculation of Shares) shall be calculated according to the following standards. ① The shares of the partner in the property of the partnership juristic person referred to in Section 22 (Calculation of Shares) shall be calculated for each fiscal year according to the amount of contributions paid: Provided, That if the property is reduced compared to the total amount of contributions paid, it shall be calculated according to the amount of the partner's contributions. ② The business reserve shall be added in proportion to the shares of the partnership member in each fiscal year, but the shares of the withdrawing partner shall be apportioned in cash or in kind. ② If the partner withdraws, in the case of the cancellation of the partnership, the land and buildings, etc., among the property refunded, are likely to destroy the joint management organization of the partnership juristic person, it shall be paid in excess of the amount equivalent to the shares of the partnership. ③ If the land of the withdrawing partner is increased as a result of joint management or due to the investment of the partnership, it shall be collected within 13 months.

3. The minutes of the general meeting; 4. Other necessary documents and reports of accounts shall be kept in the office one week before the general meeting. The following matters shall be subject to the resolution of the general meeting. (4) The general meeting shall be held with attendance of a majority of the union members, and the resolution shall be made with the approval of a majority of the union members. (2) The matters falling under any of the following subparagraphs shall be resolved with the attendance of a majority of all union members and the approval of a majority of the union members present. (3) The expulsion of union members as referred to in Article 14 (1) shall be convened within 10 days if the general meeting of the union members as referred to in paragraph (1) fails to meet the quorum:

C. The defendant's expulsion against the plaintiff and the confirmation of confirmation of nullity

1) At an ordinary general meeting of 2011 held on June 22, 2011, the Defendant decided to appoint a member of the Plaintiff on the ground that “the Plaintiff did not pay management benefits during his/her term of office as the representative director, and did not pay a provisional attachment lawsuit against the Defendant,” and that the Plaintiff violated Articles 12(1)1, 43, and 50 of the Defendant’s Articles of Incorporation by failing to keep the minutes, meeting documents, and settlement of accounts in the Defendant’s office, and that the Plaintiff violated Article 12(1)5 of the Defendant’s Articles of Incorporation.” Accordingly, the Plaintiff filed a lawsuit against the Defendant for nullification of the resolution of the general meeting ****, on August 30, 2012, the above expulsion did not constitute the expulsion under the Articles of Incorporation, or was not recognized, and thus, the judgment of the appellate court which declared that the Plaintiff’s claim was unlawful on the ground that the Plaintiff’s claim was not a defect in the substance or substance of the foregoing 201.

2) In an extraordinary general meeting held on December 31, 2012, the Defendant brought a resolution of expulsion of a member of the Plaintiff on the ground that “the Plaintiff brought an action of nullification of the general meeting by Jeju District Court 2013hap** The Plaintiff filed a lawsuit of nullification of the general meeting under Article 14(1)2 and 3 of the Defendant’s Articles of Incorporation against the Defendant on the ground that “the Plaintiff’s act constitutes grounds for expulsion under Article 14(1)2 and 3 of the Defendant’s Articles of Incorporation, and that the Plaintiff did not hold a board of directors, etc. and caused the Plaintiff’s failure to obtain a resolution of re-election.” The Defendant brought an appeal against the Defendant on the ground that the Plaintiff violated Article 12(1)1, 4, and 5 of the instant Articles of Incorporation, and that the Plaintiff did not take over the business upon retirement, and that there were considerable omissions in relevant documents.” The Plaintiff also rejected the Defendant’s appeal* 2015 Jeju High Court’s decision on January 29, 2019, 2015).

2. The dismissal was 18.

D. The plaintiff's expression of intention to withdraw from the defendant

1) On September 14, 2018, the Plaintiff demanded the Defendant to enter the Plaintiff in the Defendant’s list of members and allow the Defendant to participate in the operation of the partnership.

2) Accordingly, around September 28, 2018, the Defendant: (a) transferred to the Plaintiff financial difficulties of the Defendant, such as that the Plaintiff’s business site was under auction procedure due to the judgment on a claim for loans filed by the Plaintiff to the Defendant; (b) the Defendant transferred the Defendant’s business site in the Defendant’s business site to 5,300,000,000 won with the consent of six members other than the Plaintiff; (c) six new members who acquired the Defendant association have invested KRW 1,20,000,000; and (d) the Plaintiff did not include the Plaintiff’s investment amount of KRW 258,250,000 after the resolution of expulsion against the Plaintiff, and the Plaintiff’s investment amount is not included in the Plaintiff’s share after the resolution of expulsion against the Plaintiff; (d) the Plaintiff is registered on the Defendant’s membership roll and bears the obligation of investment to participate in the management of the association; and (e) the interest paid in duplicate between the Plaintiff and the Defendant should be clarified.

3) On November 8, 2019, the Plaintiff, even after the judgment of the court, such as Paragraph (c) above, revealed the Defendant’s intent to withdraw from the Defendant’s partnership corporation, and requested the Defendant to return the amount calculated by calculating the net property, i.e., the positive property of the Defendant partnership, excluding the small property, by calculating the net property, pursuant to Article 719 of the Civil Act.

4) Accordingly, on February 5, 2020, the defendant sent a reply that "the plaintiff shall obtain the resolution of the general meeting in accordance with the defendant's articles of incorporation in order for the plaintiff to withdraw from the defendant's partnership corporation, and when the general meeting passes a resolution, it shall settle the accounts relating to the equity shares as of December 31, 2020, which is the end of the fiscal year."

[Reasons for Recognition] Facts without dispute, Gap evidence 1, Eul evidence 2-1, Eul evidence 2-2, Gap evidence 3-1, 2-2, Gap evidence 4-1, 2, Gap evidence 5-1, 2, Eul evidence 1-2, Eul evidence 2, and Eul's argument and judgment as whole, and Eul evidence 2.

A. The parties' assertion

1) Plaintiff

On November 8, 2019, the Plaintiff expressed his/her intention to withdraw from the Defendant Partnership Corporation. Therefore, the Defendant is obligated to pay 258,250,000 won invested by the Plaintiff with the settlement amount due to the Plaintiff’s withdrawal and damages for delay.

Except as provided for in the above Act, Article 16(8) of the Agricultural and Fisheries Business Entities Act, which is a provision for the establishment of the defendant, provides that the provisions concerning partnerships in the Civil Act shall apply mutatis mutandis to agricultural partnership corporations, and pursuant to Article 716(1) of the Civil Act, each partner may withdraw at any time, if the term of existence of partnership is not determined or a member’s life is decided to continue to exist, and the provisions regarding the articles of association of the defendant association which restrict withdrawal by resolution of the association are not effective as infringing on the rights of the union members excessively contrary to the purport of the provisions of the Civil Act. In addition, the defendant's failure to recognize the withdrawal of the plaintiff on the ground that the plaintiff was maliciously assessed against the plaintiff to the extent that it would have adopted a resolution to nullify the plaintiff’s invalidation against the operation of

2) Defendant

According to the Defendant’s articles of incorporation, a member who wants to withdraw shall withdraw 60 days in advance of his intention of withdrawal, and such withdrawal shall undergo a resolution at a general meeting, and a member shall not withdraw at the time when the Defendant faces managerial difficulties without any inevitable reason. In the absence of a resolution at the general meeting of the Defendant’s members, the request of this case premised on the Plaintiff’s withdrawal from the Defendant cannot be complied

1) Whether Article 53(4) of the Articles of Incorporation of the Defendant is invalid

A) Article 16(6) of the Agricultural and Fisheries Business Entities Act provides that "the matters necessary for the registration of establishment, alteration, investment, scope of business, matters to be entered in the articles of incorporation, dissolution, etc. of an agricultural partnership or a fisheries partnership shall be prescribed by Presidential Decree." Article 16(8) of the same Act provides that "the provisions concerning associations in the Civil Act shall apply mutatis mutandis to an agricultural partnership or a fisheries partnership, except as otherwise provided for in this Act." Meanwhile, Article 12(1)6 of the Enforcement Decree of the Agricultural and Fisheries Business Entities Act provides that "the articles of incorporation of an agricultural partnership or a fisheries partnership shall include

Therefore, the articles of association of an incorporated farming association stipulate matters concerning admission, withdrawal, and expulsion of members, and where the above articles of association are effective, the provisions of the pertinent articles of association shall first apply, and where the provisions of the articles of association are not stipulated in the articles of association, or such provisions are null and void due to a violation of mandatory provisions

B) However, in light of the following circumstances, comprehensively considering the aforementioned basic facts and the purport of the entire arguments, the Defendant’s articles of association cannot be deemed as violating the purport of Article 716(1) of the Civil Act, which provides that Article 53(4) of the Civil Act excessively infringes on the right to withdraw from the Defendant’s association and may withdraw from the association at any time, and thus, cannot be deemed as violating the purport of Article 716(1) of the Civil Act. The refusal of the Plaintiff’s withdrawal based on the above articles of association cannot be deemed as going against the principle of criticism or the principle of good faith. Therefore, if the Plaintiff wishes to withdraw from the Defendant association, Article 16(6) and (8) of the Agricultural and Fisheries Business Entities Act and Article 12(1)6 of the Enforcement Decree of the Agricultural and Fisheries Business Entities

① Article 53(4) of the Defendant’s Articles of association merely requires a resolution of a general meeting when a member withdraws voluntarily, and cannot be seen as a provision prohibiting a member’s withdrawal from the general meeting (it does not completely prohibit a member’s withdrawal, but rather requires a resolution of a general meeting of members as a requirement for voluntary withdrawal from the association. Thus, it does not violate Article 716(1) of the Civil Act that each member may withdraw from the association at any time when it is not determined the duration of the association under a partnership agreement or when it is determined that a member shall continue to exist for a member’s life). In fact, the Defendant made a resolution to expulsion the Plaintiff two times by a general meeting resolution. It is difficult to deem that the Plaintiff cannot undergo a general meeting resolution in withdrawing from the Defendant partnership.

An agricultural partnership is an organization established with the aim of improving productivity through collaborative agricultural management and jointly carrying out, distributing, processing, exporting agricultural products, rural tourism and resort business, etc. as its members (Article 16(1) of the Agricultural and Fisheries Business Entities Act). The Agricultural and Fisheries Business Entities Act was established for the purpose of stably supplying safe agricultural and fishery products and food to the public through fostering agricultural and fishery business entities, such as competitive agricultural and fisheries partnerships, promoting joint management of agriculture and fisheries, and contributing to the stability of society and the development of the State (Article 1 of the Agricultural and Fisheries Business Entities Act). The State and local governments may provide necessary support, such as technology development, expansion of business size, or securing, merger, acquisition, and acquisition of agricultural and fishery machinery and facilities, management informatization, professional human resources, etc. (Article 20 of the Agricultural and Fisheries Business Entities Act). Considering the characteristics of the agricultural partnership established for public interest purposes and provided with public funds, it is unreasonable to reasonably resolve the issue of withdrawal from membership, etc., and it cannot be said that the Plaintiff’s right to withdraw from the association is violated the articles of association’s articles of incorporation.

In the event that the Plaintiff wishes to withdraw from the Defendant partnership corporation, as seen earlier, Article 53(4) of the Defendant’s Articles of Incorporation is preferentially applied, and thus, the Plaintiff’s withdrawal from the Defendant partnership corporation shall undergo a resolution at the general meeting of the Defendant partnership. As recognized earlier, the Plaintiff expressed his/her intent to withdraw from the Defendant partnership corporation around November 8, 2019. However, there is no dispute between the parties that there was no resolution at the Defendant’s general meeting of the Plaintiff’s withdrawal from the Defendant partnership, and therefore, it is apparent that the Plaintiff did not complete the procedures for withdrawal as prescribed in Article 53(4) of the Defendant’s Articles of Incorporation, and thus, it

3) Sub-committee

Therefore, since the plaintiff cannot be deemed to have effectively withdrawn from the defendant partnership corporation, the plaintiff's assertion on a different premise is without merit without further examining the remaining points.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.